G.R. No.

L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
Manila,respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

LABRADOR, J.:

I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses questions
of due process, police power and equal protection of the laws. It also poses an important issue of
fact, that is whether the conditions which the disputed law purports to remedy really or actually exist.
Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to
protect citizen and country from the alien retailer. Through it, and within the field of economy it
regulates, Congress attempts to translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival and welfare, into a concrete and
tangible measures designed to free the national retailer from the competing dominance of the alien,
so that the country and the nation may be free from a supposed economic dependence and
bondage. Do the facts and circumstances justify the enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes
the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not
citizens of the Philippines, and against associations, partnerships, or corporations the capital of
which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the
retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said
business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are
forfeited in accordance with the law, until their death or voluntary retirement in case of natural
persons, and for ten years after the approval of the Act or until the expiration of term in case of
juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of
the laws on nationalization, control weights and measures and labor and other laws relating to trade,
commerce and industry; (5) a prohibition against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches of retail business, (6) a provision
requiring aliens actually engaged in the retail business to present for registration with the proper
authorities a verified statement concerning their businesses, giving, among other matters, the nature
of the business, their assets and liabilities and their offices and principal offices of judicial entities;

1
and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to
continue such business for a period of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to
obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance
and all other persons acting under him, particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien
residents the equal protection of the laws and deprives of their liberty and property without due
process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3)
the Act violates international and treaty obligations of the Republic of the Philippines; (4) the
provisions of the Act against the transmission by aliens of their retail business thru hereditary
succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to
engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of
Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was
passed in the valid exercise of the police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the Act has only one subject embraced
in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is not impaired, and the institution
of inheritance is only of statutory origin.

IV. Preliminary consideration of legal principles involved

a. The police power. —

There is no question that the Act was approved in the exercise of the police power, but petitioner
claims that its exercise in this instance is attended by a violation of the constitutional requirements of
due process and equal protection of the laws. But before proceeding to the consideration and
resolution of the ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict
between police power and the guarantees of due process and equal protection of the laws. What is
the scope of police power, and how are the due process and equal protection clauses related to it?
What is the province and power of the legislature, and what is the function and duty of the courts?
These consideration must be clearly and correctly understood that their application to the facts of the
case may be brought forth with clarity and the issue accordingly resolved.

It has been said the police power is so far - reaching in scope, that it has become almost impossible
to limit its sweep. As it derives its existence from the very existence of the State itself, it does not
need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and
survival, and as such it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern democratic framework where
the demands of society and of nations have multiplied to almost unimaginable proportions; the field
and scope of police power has become almost boundless, just as the fields of public interest and
public welfare have become almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this
constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of
police power by which and through which the State seeks to attain or achieve interest or welfare. So
it is that Constitutions do not define the scope or extent of the police power of the State; what they

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do is to set forth the limitations thereof. The most important of these are the due process clause and
the equal protection clause.

b. Limitations on police power. —

The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:

SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of
law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220,
226.)

c. The, equal protection clause. —

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by territory within which is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exists for making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)

d. The due process clause. —

The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. Is there public interest, a public purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable,
arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative power? Can the aims conceived
be achieved by the means used, or is it not merely an unjustified interference with private interest?
These are the questions that we ask when the due process test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the guarantees
are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means
for the attainment of legitimate aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for
that would mean license and anarchy. So the State can deprive persons of life, liberty and property,
provided there is due process of law; and persons may be classified into classes and groups,
provided everyone is given the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. And if distinction and classification
has been made, there must be a reasonable basis for said distinction.

e. Legislative discretion not subject to judicial review. —

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Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must
not be overlooked, in the first place, that the legislature, which is the constitutional repository of
police power and exercises the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law
promulgated in the exercise of the police power, or of the measures adopted to implement the public
policy or to achieve public interest. On the other hand, courts, although zealous guardians of
individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of
the legislative prerogative. They have done so early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts never inquire into the wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue involved.
If the disputed legislation were merely a regulation, as its title indicates, there would be no question
that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its
subject is a common, trade or occupation, as old as society itself, which from the immemorial has
always been open to residents, irrespective of race, color or citizenship.

a. Importance of retail trade in the economy of the nation. —

In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing an infinite number of things they
do not produce, the dealer comes into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is enhanced. Under modern conditions
and standards of living, in which man's needs have multiplied and diversified to unlimited extents
and proportions, the retailer comes as essential as the producer, because thru him the infinite variety
of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail
dealers perform the functions of capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets
and things needed for home and daily life. He provides his customers around his store with the rice
or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell,
even the needle and the thread to sew them or darn the clothes that wear out. The retailer,
therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department
store or, a supermarket is so much a part of day-to-day existence.

b. The alien retailer's trait. —

The alien retailer must have started plying his trades in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale in
the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
slave.

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Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.

c. Alleged alien control and dominance. —

There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In
big cities and centers of population he has acquired not only predominance, but apparent control
over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
sugar, flour, garlic, and scores of other goods and articles. And were it not for some national
corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal
foods and products would easily become full and complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is
said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is
merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an
element of control; also so many unmanageable factors in the retail business make control virtually
impossible. The first argument which brings up an issue of fact merits serious consideration. The
others are matters of opinion within the exclusive competence of the legislature and beyond our
prerogative to pass upon and decide.

The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders with fears and misgivings, and the
year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade,
as witness the following tables:

Assets Gross Sales

Year and
No.- Per cent Per cent
Retailers Pesos Pesos
Establishments Distribution Distribution
Nationality
1941:
Filipino 106,671 200,323,138 55.82 174,181,924 51.74
..........
Chinese 15,356 118,348,692 32.98 148,813,239 44.21
...........
Others 1,646 40,187,090 11.20 13,630,239 4.05
............
1947:
Filipino 111,107 208,658,946 65.05 279,583,333 57.03
..........
Chinese 13,774 106,156,218 33.56 205,701,134 41.96
...........
Others 354 8,761,260 .49 4,927,168 1.01
...........
1948: (Census)

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 Filipino 113,631 213,342,264 67.30 467,161,667 60.51
..........
Chinese 12,087 93,155,459 29.38 294,894,227 38.20
..........
Others 422 10,514,675 3.32 9,995,402 1.29
..........
1949:
Filipino 113,659 213,451,602 60.89 462,532,901 53.47
..........
Chinese 16,248 125,223,336 35.72 392,414,875 45.36
..........
Others 486 12,056,365 3.39 10,078,364 1.17
..........
1951:
Filipino 119,352 224,053,620 61.09 466,058,052 53.07
.........
Chinese 17,429 134,325,303 36.60 404,481,384 46.06
..........
Others 347 8,614,025 2.31 7,645,327 87
..........

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)
1941:
Filipino ............................................. 1,878 1,633
Chinese 7,707 9,691
..............................................
Others ............................................... 24,415 8,281
1947:
Filipino ............................................. 1,878 2,516
Chinese ........................................... 7,707 14,934
Others .............................................. 24,749 13,919
1948: (Census)
Filipino ............................................. 1,878 4,111
Chinese ............................................. 7,707 24,398

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 Others .............................................. 24,916 23,686
1949:
Filipino ............................................. 1,878 4,069
Chinese 7,707 24,152
..............................................
Others .............................................. 24,807 20,737
1951:
Filipino ............................................. 1,877 3,905
Chinese ............................................. 7,707 33,207
Others ............................................... 24,824 22,033

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..

The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through their
assests and gross sales which average between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and
sells six to seven times more, and gains much more. The same official report, pointing out to the
known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were
largely engaged in minor retailer enterprises. As observed by respondents, the native investment is
thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and
supply.

d. Alien control and threat, subject of apprehension in Constitutional convention. —

It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted.
The framers of our Constitution also believed in the existence of this alien dominance and control
when they approved a resolution categorically declaring among other things, that "it is the sense of
the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II
Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That
was twenty-two years ago; and the events since then have not been either pleasant or comforting.
Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause
of the Preamble opines that the fathers of our Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from alien interests that had already brought under their
control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th
ed., p. 114); and analyzing the concern of the members of the constitutional convention for the
economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he
says:

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 But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but of
recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of the
nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it
(the Constitution) envisages an organized movement for the protection of the nation not only
against the possibilities of armed invasion but also against its economic subjugation by alien
interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution No.
1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar
resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and
Producers. The man in the street also believes, and fears, alien predominance and control; so our
newspapers, which have editorially pointed out not only to control but to alien stranglehold. We,
therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt
by all the sections and groups that compose the Filipino community.

e. Dangers of alien control and dominance in retail. —

But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or articles to be made available in the
market, and even the choice of the goods or articles they would or would not patronize or distribute,
that fears of dislocation of the national economy and of the complete subservience of national
economy and of the consuming public are not entirely unfounded. Nationals, producers and
consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an
article of daily use is desired to be prescribed by the aliens, because the producer or importer does
not offer them sufficient profits, or because a new competing article offers bigger profits for its
introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from
their stocks, offering the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly overlook or ignore in the interests of
truth and justice, that there exists a general feeling on the part of the public that alien participation in
the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of
which would suffice for our purposes; that at some time or other they have cornered the market of
essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and
prejudice of the consuming public, so much so that the Government has had to establish the
National Rice and Corn Corporation to save the public from their continuous hoarding practices and
tendencies; that they have violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168),

8
authorizing their immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation of the law of supply
and demand; that they have connived to boycott honest merchants and traders who would not cater
or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed
by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in derision and contempt of lawful authority.
It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly
causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government and by their own lawful diplomatic
representatives, action which impliedly admits a prevailing feeling about the existence of many of the
above practices.

The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of war or other calamity. We do not
have here in this country isolated groups of harmless aliens retailing goods among nationals; what
we have are well organized and powerful groups that dominate the distribution of goods and
commodities in the communities and big centers of population. They owe no allegiance or loyalty to
the State, and the State cannot rely upon them in times of crisis or emergency. While the national
holds his life, his person and his property subject to the needs of his country, the alien may even
become the potential enemy of the State.

f. Law enacted in interest of national economic survival and security. —

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is
not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate
desire and determination of the people, thru their authorized representatives, to free the nation from
the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its
disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and
indisputably falls within the scope of police power, thru which and by which the State insures its
existence and security and the supreme welfare of its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. — The next question that now poses solution is,
Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage
is the root and cause of the distinction between the alien and the national as a trader. The alien
resident owes allegiance to the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we
admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of
regard, sympathy and consideration for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the
alien go back to his beloved country and his beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such utter disregard for his customers and the people on
whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may
seem.

Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in industries that would help the country's economy
and increase national wealth. The alien's interest in this country being merely transient and

9
temporary, it would indeed be ill-advised to continue entrusting the very important function of retail
distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the
nationals, show the existence of real and actual, positive and fundamental differences between an
alien and a national which fully justify the legislative classification adopted in the retail trade
measure. These differences are certainly a valid reason for the State to prefer the national over the
alien in the retail trade. We would be doing violence to fact and reality were we to hold that no
reason or ground for a legitimate distinction can be found between one and the other.

b. Difference in alien aims and purposes sufficient basis for distinction. —

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are
actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals
and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer,
that this is the prerogative of the law-making power. Since the Court finds that the classification is
actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said
that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the
legislature acted within its legitimate prerogative and it can not declare that the act transcends the
limit of equal protection established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative power
admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only
when the classification is without reasonable basis. In addition to the authorities we have earlier
cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369,
which clearly and succinctly defined the application of equal protection clause to a law sought to be
voided as contrary thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the exercise of the
wide scope of discretion in that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary. 2. A classification having some
reasonable basis does not offend against that clause merely because it is not made with
mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be
conceived that would sustain it, the existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."

c. Authorities recognizing citizenship as basis for classification. —

The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761
of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of
vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or
the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not

10
violate the equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law
had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these
Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all
presumptions are in favor of its constitutionality. In substance, we held that the limitation of domestic
ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the
equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In
rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the
case of Gibbons vs. Ogden, 9 Wheat., I, as follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is
distinctly of that character, and forms part of an extensive system, the object of which is to
encourage American shipping, and place them on an equal footing with the shipping of other
nations. Almost every commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American shipping is contemplated,
in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to
the act of her enrollment. But it is to confer on her American privileges, as contra
distinguished from foreign; and to preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American commercial marine, as well as frauds
upon the revenue in the trade coastwise, that this whole system is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That
would be requiring a higher degree of protection for aliens as a class than for similar classes
than for similar classes of American citizens. Broadly speaking, the difference in status
between citizens and aliens constitutes a basis for reasonable classification in the exercise
of police power. (2 Am., Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of

hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared
his intention, to become a citizen of the United States, was held valid, for the following reason: It
may seem wise to the legislature to limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the court cannot question this
judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which
prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not
to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was
based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life
as to enable him to appreciate the relation of this particular business to our entire social fabric", and
was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115
(1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may
not bear in some instances such a relation to a legitimate object of legislation as to be made the
basis of permitted classification, and that it could not state that the legislation is clearly wrong; and
that latitude must be allowed for the legislative appraisement of local conditions and for the
legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124
N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawn brooking was considered as having tendencies injuring
public interest, and limiting it to citizens is within the scope of police power. A similar statute denying
aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151

11
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that
aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty,
hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool, billiard,
card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State
Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's findings that the exercise of
the business by the aliens does not in any way affect the morals, the health, or even the
convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479
(1947), a California statute banning the issuance of commercial fishing licenses to person ineligible
to citizenship was held void, because the law conflicts with Federal power over immigration, and
because there is no public interest in the mere claim of ownership of the waters and the fish in them,
so there was no adequate justification for the discrimination. It further added that the law was the
outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices
dissented on the theory that fishing rights have been treated traditionally as natural resources.
In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed
a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was
declared void because the court found that there was no reason for the classification and the tax
was an arbitrary deduction from the daily wage of an employee.

d. Authorities contra explained. —

It is true that some decisions of the Federal court and of the State courts in the United States hold
that the distinction between aliens and citizens is not a valid ground for classification. But in this
decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or
were the result or product of racial antagonism and hostility, and there was no question of public
interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States
Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in
any language other than English, Spanish or any other local dialect, but the main reasons for the
decisions are: (1) that if Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be
deprived of their right to be advised of their business and to direct its conduct. The real reason for
the decision, therefore, is the court's belief that no public benefit would be derived from the
operations of the law and on the other hand it would deprive Chinese of something indispensable for
carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring
powers on officials to withhold consent in the operation of laundries both as to persons and place,
was declared invalid, but the court said that the power granted was arbitrary, that there was no
reason for the discrimination which attended the administration and implementation of the law, and
that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900),
a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the
discrimination bore no reasonable and just relation to the act in respect to which the classification
was proposed.

The case at bar is radically different, and the facts make them so. As we already have said, aliens
do not naturally possess the sympathetic consideration and regard for the customers with whom
they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so
far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land.
These limitations on the qualifications of the aliens have been shown on many occasions and
instances, especially in times of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the
distinction between the alien and the national, thus:

. . . . It may be judicially known, however, that alien coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is

12
 likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental environment
and control have been engendered and formed under entirely different regimes and political
systems, have not the same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of the government itself.
Further enlargement, is unnecessary. I have said enough so that obviously it cannot be
affirmed with absolute confidence that the Legislature was without plausible reason for
making the classification, and therefore appropriate discriminations against aliens as it
relates to the subject of legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive. —

We now come to due process as a limitation on the exercise of the police power. It has been stated
by the highest authority in the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the law
shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a
real and substantial relation to the subject sought to be attained. . . . .

xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may reasonably be
deemed to promote public welfare, and to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to declare such policy, or, when it is declared
by the legislature, to override it. If the laws passed are seen to have a reasonable relation to
a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of
due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)

Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the restriction
it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not
whether it imposes any restrictions on such rights. . . .

xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not
be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular

13
 class, require such interference; and second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly oppressive upon individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:

In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive,
and capricious use of that power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.

b. Petitioner's argument considered. —

Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges
long ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful
and honest occupation and therefore beyond the power of the legislature to prohibit and penalized.
This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e.,
that in this country where the occupation is engaged in by petitioner, it has been so engaged by him,
by the alien in an honest creditable and unimpeachable manner, without harm or injury to the
citizens and without ultimate danger to their economic peace, tranquility and welfare. But the
Legislature has found, as we have also found and indicated, that the privilege has been so grossly
abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys
a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's
economy endangering the national security in times of crisis and emergency.

The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is
clear. The law in question is deemed absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and dominance. It is not necessarily
unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test
of reasonableness of a law is the appropriateness or adequacy under all circumstances of the
means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation,
which is not merely reasonable but actually necessary, must be considered not to have infringed the
constitutional limitation of reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the bill,
which later was enacted into law:

This bill proposes to regulate the retail business. Its purpose is to prevent persons who are
not citizens of the Philippines from having a strangle hold upon our economic life. If the
persons who control this vital artery of our economic life are the ones who owe no allegiance
to this Republic, who have no profound devotion to our free institutions, and who have no
permanent stake in our people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy of other people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who
are not citizens of the Philippines of their means of livelihood. While this bill seeks to take
away from the hands of persons who are not citizens of the Philippines a power that can be

14
 wielded to paralyze all aspects of our national life and endanger our national security it
respects existing rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is none

the less legitimate. Freedom and liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of their own race or country. The
removal and eradication of the shackles of foreign economic control and domination, is one of the
noblest motives that a national legislature may pursue. It is impossible to conceive that legislation
that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of
a legitimate aspiration of a people can never be beyond the limits of legislative authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. —

The framers of the Constitution could not have intended to impose the constitutional restrictions of
due process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have given to
the legislature full authority and power to enact legislation that would promote the supreme
happiness of the people, their freedom and liberty. On the precise issue now before us, they
expressly made their voice clear; they adopted a resolution expressing their belief that the legislation
in question is within the scope of the legislative power. Thus they declared the their Resolution:

That it is the sense of the Convention that the public interest requires the nationalization of
retail trade; but it abstain from approving the amendment introduced by the Delegate for
Manila, Mr. Araneta, and others on this matter because it is convinced that the National
Assembly is authorized to promulgate a law which limits to Filipino and American citizens the
privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution,
quoted on pages 66 and 67 of the Memorandum for the Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the
nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that
"no franchise, certificate, or any other form of authorization for the operation of the public utility shall
be granted except to citizens of the Philippines." The nationalization of the retail trade is only a
continuance of the nationalistic protective policy laid down as a primary objective of the Constitution.
Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions
of the Constitution is unreasonable, invalid and unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the Legislature
was in duty bound to face the problem and meet, through adequate measures, the danger and threat
that alien domination of retail trade poses to national economy.

d. Provisions of law not unreasonable. —

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those

15
already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or privilege is denied
to those only upon conviction of certain offenses. In the deliberations of the Court on this case,
attention was called to the fact that the privilege should not have been denied to children and heirs
of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and
purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It is well
settled that the Court will not inquire into the motives of the Legislature, nor pass upon general
matters of legislative judgment. The Legislature is primarily the judge of the necessity of an
enactment or of any of its provisions, and every presumption is in favor of its validity, and though the
Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not
palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as
a violation of due process, is not its reasonableness, but its unreasonableness, and we find the
provisions are not unreasonable. These principles also answer various other arguments raised
against the law, some of which are: that the law does not promote general welfare; that thousands of
aliens would be thrown out of employment; that prices will increase because of the elimination of
competition; that there is no need for the legislation; that adequate replacement is problematical; that
there may be general breakdown; that there would be repercussions from foreigners; etc. Many of
these arguments are directed against the supposed wisdom of the law which lies solely within the
legislative prerogative; they do not import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to
be violated in Section 21 (1) of Article VI, which reads:

No bill which may be enacted in the law shall embrace more than one subject which shall be
expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the
provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not
and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which
terms express the two main purposes and objectives of the law. But "regulate" is a broader term than
either prohibition or nationalization. Both of these have always been included within the term
regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page
41 of Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc."
sufficiently expresses the subject of an actprohibiting the sale of such liquors to minors and
to persons in the habit of getting intoxicated; such matters being properly included within the
subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of
Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the thing to be regulated. While word

16
 regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it
should not have such meaning when used in delegating police power in connection with a
thing the best or only efficacious regulation of which involves suppression. (State vs. Morton,
162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See.
4803, p. 345.) The above rule was followed the title of the Act in question adopted the more general
term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules
for the regulation of the retail trade which may not be included in the terms "nationalization" or
"prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have
been many provisions not falling within the scope of the title which would have made the Act invalid.
The use of the term "regulate", therefore, is in accord with the principle governing the drafting of
statutes, under which a simple or general term should be adopted in the title, which would include all
other provisions found in the body of the Act.

One purpose of the constitutional directive that the subject of a bill should be embraced in its title is
to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or
of the public. In the case at bar it cannot be claimed that the legislators have been appraised of the
nature of the law, especially the nationalization and the prohibition provisions. The legislators took
active interest in the discussion of the law, and a great many of the persons affected by the
prohibitions in the law conducted a campaign against its approval. It cannot be claimed, therefore,
that the reasons for declaring the law invalid ever existed. The objection must therefore, be
overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United
Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a
mere recommendation or a common standard of achievement for all peoples and all nations (Id. p.
39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights
can be inferred the fact that members of the United Nations Organizations, such as Norway and
Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws
against foreigners engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18,
1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But
the nationals of China are not discriminating against because nationals of all other countries, except
those of the United States, who are granted special rights by the Constitution, are all prohibited from
engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty
is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of the police power of the State
(plaston vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

17
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own
personality and insures its security and future; that the law does not violate the equal protection
clause of the Constitution because sufficient grounds exist for the distinction between alien and
citizen in the exercise of the occupation regulated, nor the due process of law clause, because the
law is prospective in operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry
out its objectives appear to us to be plainly evident — as a matter of fact it seems not only
appropriate but actually necessary — and that in any case such matter falls within the prerogative of
the Legislature, with whose power and discretion the Judicial department of the Government may
not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no
duplicity and has not misled the legislators or the segment of the population affected; and that it
cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually
been entered into on the subject and the police power may not be curtailed or surrendered by any
treaty or any other conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been
made less harsh in its impact on the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the time comes for them to close. Our
legal duty, however, is merely to determine if the law falls within the scope of legislative authority
and does not transcend the limitations of due process and equal protection guaranteed in the
Constitution. Remedies against the harshness of the law should be addressed to the Legislature;
they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix,
JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting:

I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act
passed by the Congress and duly approved by the President of the Republic. But the rule does not
preclude courts from inquiring and determining whether the Act offends against a provision or
provisions of the Constitution. I am satisfied that the Act assailed as violative of the due process of
law and the equal protection of the laws clauses of the Constitution does not infringe upon them,
insofar as it affects associations, partnership or corporations, the capital of which is not wholly
owned by the citizens of the Philippines, and aliens, who are not and have not been engaged in the
retail business. I am, however, unable to persuade myself that it does not violate said clauses
insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who
are and have heretofore been engaged in said business. When they did engage in the retail
business there was no prohibition on or against them to engage in it. They assumed and believed in
good faith they were entitled to engaged in the business. The Act allows aliens to continue in
business until their death or voluntary retirement from the business or forfeiture of their license; and
corporations, associations or partnership, the capital of which is not wholly owned by the citizens of

18
the Philippines to continue in the business for a period of ten years from the date of the approval of
the Act (19 June 1954) or until the expiry of term of the existence of the association or partnership or
corporation, whichever event comes first. The prohibition on corporations, the capital of which is not
wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than
ten years from the date of the approval of the Act or beyond the term of their corporate existence,
whichever event comes first, is valid and lawful, because the continuance of the existence of such
corporations is subject to whatever the Congress may impose reasonably upon them by subsequent
legislation.1 But the prohibition to engage in the retail business by associations and partnerships, the
capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of the
approval of the Act, even before the end of the term of their existence as agreed upon by the
associates and partners, and by alien heirs to whom the retail business is transmitted by the death of
an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of
their property without due process of law. To my mind, the ten-year period from the date of the
approval of the Act or until the expiration of the term of the existence of the association and
partnership, whichever event comes first, and the six-month period granted to alien heirs of a
deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the
law, because the effect of the prohibition is to compel them to sell or dispose of their business. The
price obtainable at such forced sale of the business would be inadequate to reimburse and
compensate the associates or partners of the associations or partnership, and the alien heirs of a
deceased alien, engaged in the retail business for the capital invested in it. The stock of
merchandise bought and sold at retail does not alone constitute the business. The goodwill that the
association, partnership and the alien had built up during a long period of effort, patience and
perseverance forms part of such business. The constitutional provisions that no person shall be
deprived of his property without due process of law2 and that no person shall be denied the equal
protection of the laws3 would have no meaning as applied to associations or partnership and alien
heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their
business within ten years from the date of the approval of the Act and before the end of the term of
the existence of the associations and partnership as agreed upon by the associations and partners
and within six months after the death of their predecessor-in-interest.

The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership
of private agricultural lands which together with the lands of the public domain constitute the
priceless patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive
aliens and their heirs of such lands.4

For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations
and partnership referred to therein to wind up their retail business within ten years from the date of
the approval of the Act even before the expiry of the term of their existence as agreed upon by the
associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in the
retail business in his lifetime his executor or administrator, to liquidate the business, are invalid, for
they violate the due process of law and the equal protection of the laws clauses of the Constitution.

19
G.R. No. L-98050 March 17, 1994

PHILIPPINE PHOSPHATE FERTILIZER CORPORATION, petitioner,

vs.
HON. RUBEN D. TORRES, Secretary of Labor and Employment, HON. RODOLFO S. MILADO,
Department of Labor and Employment Mediator-Arbiter for Region VIII, Tacloban, City, and
PHILPHOS MOVEMENT FOR PROGRESS, INC. (PMPI), respondents.

Quiroz, Dumas & Henares Law Offices for petitioner.

Seno, Mendoza & Associates for private respondent Philphos Movement for Progress, Inc.

BELLOSILLO, J.:

PHILIPPINE PHOSPHATE FERTILIZER CORPORATION (PHILPHOS) assails the decision of the

Secretary of Labor of 7 August 1990 affirming the order of the Mediator-Arbiter of 28 March 1990
which directed the immediate conduct of a certification election among the supervisory, professional
or technical, and confidential employees of petitioner corporation.

On 7 July 1989, Philphos Movement for Progress, Inc. (PMPI for brevity), filed with the Department
of Labor and Employment a petition for certification election among the supervisory employees of
petitioner, alleging that as a supervisory union duly registered with the Department of Labor and
Employment it was seeking to represent the supervisory employees of Philippine Phosphate
Fertilizer Corporation.

The petition for certification election filed by PMPI was not opposed by PHILPHOS. In fact, on 11
August 1989, PHILPHOS submitted a position paper with the Mediator-Arbiter stating that its
management welcomed the creation of a supervisory employees' union provided the necessary
requisites of law were properly observed, but exempting from the union its superintendents who
were managerial and not supervisory employees as they managed a division, subdivision or section,
and were vested with powers or prerogatives to lay down and execute management policies.
PHILPHOS also asserted that its professional or technical employees were not within the definition
of supervisory employees under the Labor Code as they were immediately under the direction and
supervision of its superintendents and supervisors. Moreover, the professional and technical
employees did not have a staff of workers under them. Consequently, petitioner prayed for the
exclusion of its superintendents andprofessional/technical employees from the PMPI supervisory
union.

On 13 October 1989, Mediator-Arbiter Rodolfo S. Milado issued an order directing the holding of a
certification election among the supervisory employees of petitioner, excluding therefrom the
superintendents and theprofessional and technical employees. He also directed the parties to attend
the pre-election conference on 19 April 1990 for the determination of the mechanics of the election
process and the qualifications and eligibility of those allowed to vote.

On 15 November 1989, PMPI filed an amended petition with the Mediator-Arbiter wherein it sought
to represent not only the supervisory employees of petitioner but also
its professional/technical and confidential employees. The amended petition was filed in view of the
amendment of the PMPI Construction which included in its membership
the professional/technical and confidential employees.

20
On 14 December 1989, the parties therein agreed to submit their respective position papers and to
consider the amended petition submitted for decision on the basis thereof and related documents.

On 28 March 1990, Mediator-Arbiter Milado issued an order granting the petition and directing the
holding of a certification election among the "supervisory, professional (engineers, analysts,
mechanics, accountants, nurses, midwives, etc.), technical, and confidential employees" 1 to
comprise the proposed bargaining unit.

On 16 April 1990, PHILPHOS appealed the order of 28 March 1990 to the Secretary of Labor and
Employment who on 7 August 1990 rendered a decision through Undersecretary Bienvenido
Laguesma dismissing the appeal. PHILPHOS moved for reconsideration but the same was denied;
hence, the instant petition alleging grave abuse of discretion on the part of public respondents in
rendering the assailed rulings.

On 8 July 1991, this Court issued a temporary restraining order enjoining respondents from holding
the certification election among petitioner's supervisory, professional/technical, and confidential
employees scheduled on 12 July 1991.

There are two (2) issues raised by petitioner: (1) whether it was denied due process in the
proceedings before respondent Mediator-Arbiter; and, (2) whether
its professional/technical and confidential employees may validly join respondent PMPI union which
is composed of supervisors.

PHILPHOS claims that it was denied due process when respondent Mediator-Arbiter granted the
amended petition of respondent PMPI without according PHILPHOS a new opportunity to be heard.

We do not see it the way PHILPHOS does here. The essence of due process is simply an
opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's
side or an opportunity to seek a reconsideration of the action or ruling complained of.2 Where, as in
the instant case, petitioner PHILPHOS agreed to file its position paper with the Mediator-Arbiter and
to consider the case submitted for decision on the basis of the position papers filed by the parties,
there was sufficient compliance with the requirement of due process, as petitioner was afforded
reasonable opportunity to present its side.3 Moreover, petitioner could have, if it so desired, insisted
on a hearing to confront and examine the witnesses of the other party. But it did
not; 4 instead, it opted to submit its position paper with the Mediator-Arbiter. Besides, petitioner had
all the opportunity to ventilate its arguments in its appeal to the Secretary of Labor.

As regards the second issue, we are with petitioner that being a supervisory union, respondent PMPI
cannot represent the professional/technical and confidential employees of petitioner whose positions
we find to be more of the rank and file than supervisory.

With the enactment in March 1989 of R.A. 6715, employees were thereunder reclassified into three
(3) groups, namely: (a) managerial employees, (b) supervisory employees, and (c) rank and file
employees. The category of supervisory employees is once again recognized in the present law.

Article 212, par. (m), of the Labor Code, as amended, provides, that "(s)upervisory employees are
those who, in the interest of the employer, effectively recommend such managerial actions if the
exercise of such authority is not merely routinary or clerical in nature but requires the use of
independent judgment." The definition of managerial employees is limited to those having authority
to hire and fire, while those who only recommend effectively the hiring or firing or transfer of
personnel; are considered closer to rank and file employees. The exclusion therefore of mid-level
executives from the category of managers has brought about a third classification, the supervisory

21
employees. The peculiar role of supervisors is such that while they are not managers, when they
recommend action implementing management policy or ask for the discipline or dismissal of
subordinates, they identify with the interests of the employer and may act contrary to the interests of
the rank and file.5

In its position paper submitted to the Mediator-Arbiter, petitioner described the positions and
functions of itsprofessional/technical employees, (engineers, analysts, mechanics, accountants,
nurses, and midwives). The guidelines, which were not refuted by respondent PMPI, state:

. . . . Professional and Technical positions are those whose primary duty consists of
the performance of work directly related to management programs; who customarily,
regularly and routinarily exercise judgment in the application of concepts, methods,
systems and procedures in their respective fields of specialization; who regularly and
directly assist a managerial and/or supervisory employee, execute under general
supervision, work along specialized or technical lines requiring special training,
experience or knowledge, or execute under general supervision special assignments
and task . . . . They are immediately under the direction and supervision of
supervisors or superintendents. They have no men under them but are regularly
called upon by their supervisors or superintendents on some technical matters.6

Moreover, Herculano, A. Duhaylungsod, Personnel Officer of petitioner, attested that there was no
community of interests between the supervisors of petitioner and the professional/technical
employees; that as of 25 July 1990, personnel records showed that there were 125 supervisors and
271 professional/technical employees; that of the 271 professional/technical employees, 150 were
directly under and being supervised by supervisors, while the rest were staff members of
superintendents.7

The certification of Personnel Officer Duhaylungsod that its professional/technical employees occupy
positions that are non-supervisory is evidence that said employees belong to the rank and file.8 Quite
obviously, theseprofessional/technical employees cannot effectively recommend managerial actions
with the use of independent judgment because they are under the supervision of superintendents
and supervisors. Because it is unrefuted that these professional/technical employees are performing
non-supervisory functions, hence considered admitted, they should be classified, at least for
purposes of this case, as rank and file employees. Consequently, theseprofessional/technical
employees cannot be allowed to join a union composed of supervisors. Conversely, supervisory
employees cannot join a labor organization of employees under their supervision but may validly
form a separate organization of their own.9 This is provided in Art. 245 of the Labor Code, as
amended by R.A. No. 6715, to wit:

. . . Managerial employees are not eligible to join, assist or form any labor
organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank and file employees but may join, assist or form separate
labor organizations of their own.

Respondent PMPI is supposed to be a union of 125 supervisors. If the professional/technical

employees are included as members, and records show that they are 271 in all or much more than
the supervisors, then PMPI will turn out to be a rank and file union with the supervisors as members.

This is precisely the situation which the law prohibits. It would create an obvious conflict of views
among the members, or at least between two (2) groups of members espousing opposing interests.
The intent of the law is to avoid a situation where supervisors would merge with the rank and file, or
where the supervisors' labor organization would represent conflicting interests, especially where, as

22
in the case at bar, the supervisors will be commingling with those employees whom they directly
supervise in their own bargaining unit. Members of the supervisory union might refuse to carry out
disciplinary measures against their co-member rank and file employees. 10

Supervisors have the right to form their own union or labor organization. What the law prohibits is a
union whose membership comprises of supervisors merging with the rank and file
employees because this is where conflict of interests may arise in the areas of discipline, collective
bargaining and strikes. 11 The professional/technical employees of petitioner therefore may join the
existing rank and file union, or form a union separate and distinct from the existing union organized
by the rank and file employees of the same company.

As to the confidential employees of the petitioner, the latter has not shown any proof or compelling
reason to exclude them from joining respondent PMPI and from participating in the certification
election, unless these confidential employees are the same professional/technical employees whom
we find to be occupying rank and file positions.

WHEREFORE, the petition is GRANTED. The decision of respondent Secretary of Labor of 7

August 1990, as well as the order of the respondent Mediator-Arbiter of 28 March 1990, is SET
ASIDE. The professional/technical employees of petitioner Philippine Phosphate Fertilizer
Corporation (PHILPHOS) are declared disqualified from affiliating with respondent Philphos
Movement for Progress, Inc. (PMPI).

The Department of Labor is directed to order immediately the conduct of certification election among
the supervisory employees of petitioner, particularly excluding therefrom its professional and
technical employees.

SO ORDERED.

BAYANI M. ALONTE, petitioner, vs. HON. MAXIMO A. SAVELLANO JR.,

NATIONAL BUREAU OF INVESTIGATION and PEOPLE OF THE
PHILIPPINES, respondents.

[G.R. No. 131728. March 9, 1998]

BUENAVENTURA CONCEPCION, petitioner, vs. JUDGE MAXIMO

SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES, and
JUVIELYN Y. PUNONGBAYAN, respondents.

DECISION
VITUG, J.:

Pending before this Court are two separate petitions, one filed by petitioner Bayani
M. Alonte, docketed G.R. No. 131652, and the other by petitioner Buenaventura
Concepcion, docketed G.R. No. 131728, that assail the decision of respondent Judge

23
Maximo A. Savellano, Jr., of the Regional Trial Court ("RTC"), Branch 53, of Manila finding
both petitioners guilty beyond reasonable doubt of the crime of rape. The two petitions
were consolidated.
On 05 December 1996, an information for rape was filed against petitioners Bayani
M. Alonte, an incumbent Mayor of Bian, Laguna, and Buenaventura Concepcion
predicated on a complaint filed by Juvie-lyn Punongbayan. The information contained the
following averments; thus:

That on or about September 12, 1996, in Sto. Tomas, Bian, Laguna, and
within the jurisdiction of this Honorable court, the above named accused, who
is the incumbent mayor of Bian, Laguna after giving complainant-child drinking
water which made her dizzy and weak, did then and there willfully, unlawfully
and feloniously have carnal knowledge with said JUVIELYN PUNONGBAYAN
against her will and consent, to her damage and prejudice.

That accused Buenaventura `Wella Concepcion without having participated as

principal or accessory assisted in the commission of the offense by bringing
said complainant child to the rest house of accused Bayani `Arthur Alonte at
Sto. Tomas, Bian, Laguna and after receiving the amount of P1,000.00 left her
alone with Bayani Alonte who subsequently raped her.

Contrary to Law.[1]

The case was docketed Criminal Case No. 9619-B and assigned by raffle to Branch
25 of the RTC of Bian, Laguna, presided over by Judge Pablo B. Francisco.
On 13 December 1996, Juvie-lyn Punongbayan, through her counsel Attorney
Remedios C. Balbin, and Assistant Chief State Prosecutor (ACSP) Leonardo Guiyab, Jr.,
filed with the Office of the Court Administrator a Petition for a Change of Venue (docketed
Administrative Matter No. 97-1-12-RTC) to have the case transferred and tried by any of
the Regional Trial Courts in Metro Manila.
During the pendency of the petition for change of venue, or on 25 June 1997, Juvie-
lyn Punongbayan, assisted by her parents and counsel, executed an affidavit of
desistance, quoted herein in full, as follows:

AFFIDAVIT OF DESISTANCE

I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a resident of No.

5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly
assisted by private legal counsel and my parents, after having duly sworn in
accordance with law, depose and say:

1. That I am the Complainant in the rape case filed against Mayor Bayani
`Arthur Alonte of Bian, Laguna, with the RTC-Branch 25 of Bian, Laguna;
24
2. That the case has been pending for some time, on preliminary issues,
specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of
the appeal to the Court of Appeals, and after its denial by said court, brought
to the Office of the President, on the veracity of the findings of the Five-Man
Investigating Panel of the State Prosecutors Office, and the Secretary of
Justice, and (c) a hold-departure order filed with the Bian Court;

3. That the legal process moves ever so slowly, and meanwhile, I have
already lost two (2) semesters of my college residence. And when the actual
trial is held after all the preliminary issues are finally resolved, I anticipate a
still indefinite suspension of my schooling to attend the hearings;

4. That during the entire period since I filed the case, my family has lived a
most abnormal life: my father and mother had to give up their jobs; my
younger brother, who is in fourth grade, had to stop his schooling, like myself;

5. That I do not blame anyone for the long, judicial process, I simply wish to
stop and live elsewhere with my family, where we can start life anew, and live
normally once again;

6. That I pray that I be allowed to withdraw my complaint for rape and the
other charge for child abuse wherein the Five-Man Investigating Panel of the
Office of the State Prosecutor found a prima facie case although the
information has not been filed, and that I will not at any time revive this, and
related cases or file new cases, whether, criminal, civil, and/or administrative,
here or anywhere in the Philippines;

7. That I likewise realize that the execution of this Affidavit will put to doubt my
credibility as a witness-complainant;

8. That this is my final decision reached without fear or favor, premised on a

corresponding commitment that there will be no reprisals in whatever form,
against members of the police force or any other official of officer, my relatives
and friends who extended assistance to me in whatever way, in my search for
justice.

"WHEREOF, I affix my signature this 25 day of June, 1997, in Quezon City.

"(Sgd) JUVIE-LYN Y.
PUNONGBAYAN
Complainant

25
"Assisted by:

(Sgd) ATTY. REMEDIOS C. BALBIN

Private Prosecutor

"In the presence of:

(Sgd) PABLO PUNONGBAYAN

Father

(Sgd) JULIE Y. PUNONGBAYAN

Mother

"SUBSCRIBED AND SWORN to before me this 25 day of June, 1997, in

Quezon City.

"(Sgd) Illegible
Administering Officer"[2]

On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners, moved to have

the petition for change of venue dismissed on the ground that it had become moot in view
of complainant's affidavit of desistance. On 22 August 1997, ACSP Guiyab filed his
comment on the motion to dismiss. Guiyab asserted that he was not aware of the
desistance of private complainant and opined that the desistance, in any case, would not
produce any legal effect since it was the public prosecutor who had direction and control
of the prosecution of the criminal action. He prayed for the denial of the motion to dismiss.
On 02 September 1997, this Court issued a Resolution (Administrative Matter No. 97-
1-12-RTC), granting the petition for change of venue. The Court said:

"These affidavits give specific names, dates, and methods being used to
abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-
B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the
fear of the petitioner, her private counsel and her witnesses are too
generalized if not fabricated. Indeed, the probability that in desisting from
pursuing her complaint for rape, petitioner, a minor, may have succumbed to
some illicit influence and undue pressure. To prevent possible miscarriage of
justice is a good excuse to grant the petition to transfer the venue of Criminal
Case No. 9619-B from Bian, Laguna to the City of Manila.

"IN VIEW WHEREOF, the Petition for Change of Venue from Bian, Laguna to the City of
Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case
No. 9619-B to any of its branches.The judge to whom Crim. Case No. 9619-B shall be
raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of

26
the RTC of Bian, Laguna and determine the voluntariness and validity of petitioner's
desistance in light of the opposition of the public prosecutor, Asst. Chief State
Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of Bian,
Laguna is ordered to personally deliver to the Executive Judge of Manila the complete
records of Crim. Case No. 9619-B upon receipt of this Resolution."[3]

On 17 September 1997, the case, now re-docketed Criminal Case No. 97-159955 by
the Clerk of Court of Manila, was assigned by raffle to Branch 53, RTC Manila, with
respondent Judge Maximo A. Savellano, Jr., presiding.
On 07 October 1997, Juvie-lyn Punongbayan, through Attorney Balbin, submitted to
the Manila court a "compliance" where she reiterated "her decision to abide by her
Affidavit of Desistance."
In an Order, dated 09 October 1997, Judge Savellano found probable cause for the
issuance of warrants for the arrest of petitioners Alonte and Concepcion without prejudice
to, and independent of, this Courts separate determination as the trier of facts, of the
voluntariness and validity of the [private complainant's] desistance in the light of the
opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab.
On 02 November 1997, Alonte voluntarily surrendered himself to Director Santiago
Toledo of the National Bureau of Investigation (NBI), while Concepcion, in his case,
posted the recommended bail of P150,000.00.
On 07 November 1997, petitioners were arraigned and both pleaded not guilty to the
charge. The parties manifested that they were waiving pre-trial. The proceedings forthwith
went on. Per Judge Savellano, both parties agreed to proceed with the trial of the case
on the merits.[4] According to Alonte, however, Judge Savellano allowed the prosecution
to present evidence relative only to the question of the voluntariness and validity of the
affidavit of desistance.[5]
It would appear that immediately following the arraignment, the prosecution
presented private complainant Juvie-lyn Punongbayan followed by her parents. During
this hearing, Punongbayan affirmed the validity and voluntariness of her affidavit of
desistance. She stated that she had no intention of giving positive testimony in support of
the charges against Alonte and had no interest in further prosecuting the
action. Punongbayan confirmed: (i) That she was compelled to desist because of the
harassment she was experiencing from the media, (ii) that no pressures nor influence
were exerted upon her to sign the affidavit of desistance, and (iii) that neither she nor her
parents received a single centavo from anybody to secure the affidavit of desistance.
Assistant State Prosecutor Marilyn Campomanes then presented, in
sequence: (i) Punongbayans parents, who affirmed their signatures on the affidavit of
desistance and their consent to their daughters decision to desist from the case, and
(ii) Assistant Provincial Prosecutor Alberto Nofuente, who attested that the affidavit of
desistance was signed by Punongbayan and her parents in his presence and that he was
satisfied that the same was executed freely and voluntarily. Finally, Campomanes
manifested that in light of the decision of private complainant and her parents not to
pursue the case, the State had no further evidence against the accused to prove the guilt

27
of the accused. She, then, moved for the "dismissal of the case" against both Alonte and
Concepcion.
Thereupon, respondent judge said that "the case was submitted for decision." [6]
On 10 November 1997, petitioner Alonte filed an "Urgent Motion to Admit to Bail."
Assistant State Prosecutor Campomanes, in a Comment filed on the same date, stated
that the State interposed no objection to the granting of bail and in fact Justice and Equity
dictates that it joins the accused in his prayer for the granting of bail.
Respondent judge did not act on the application for bail.
On 17 November 1997, Alonte filed anew an Urgent Plea to Resolve the Motion for
Bail. On even date, ASP Campomanes filed a Manifestation deeming "it proper and in
accord with justice and fair play to join the aforestated motion.
Again, the respondent judge did not act on the urgent motion.
The records would indicate that on the 25th November 1997, 1st December 1997,
8th December 1997 and 10th December 1997, petitioner Alonte filed a Second, Third,
Fourth and Fifth Motion for Early Resolution, respectively, in respect of his application for
bail. None of these motions were acted upon by Judge Savellano.
On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead counsel for
petitioner Alonte received a notice from the RTC Manila, Branch 53, notifying him of the
schedule of promulgation, on 18 December 1997, of the decision on the case. The
counsel for accused Concepcion denied having received any notice of the scheduled
promulgation.
On 18 December 1997, after the case was called, Atty. Sigrid Fortun and Atty. Jose
Flaminiano manifested that Alonte could not attend the promulgation of the decision
because he was suffering from mild hypertension and was confined at the NBI clinic and
that, upon the other hand, petitioner Concepcion and his counsel would appear not to
have been notified of the proceedings. The promulgation, nevertheless, of the decision
proceeded in absentia; the reading concluded:

WHEREFORE, judgment is hereby rendered finding the two (2) accused

Mayor Bayani Alonte and Buenaventura `Wella Concepcion guilty beyond
reasonable doubt of the heinous crime of RAPE, as defined and penalized
under Article 335(2) in relation to Article 27 of the Revised Penal Code, as
amended by Republic Act No. 7659, for which each one of the them is hereby
sentenced to suffer the indivisible penalty of RECLUSION PERPETUA or
imprisonment for twenty (20) years and one (1) day to forty (40) years.

In view thereof, the bail bond put up by the accused Buenaventura `Wella
Concepcion for his provisional liberty is hereby cancelled and rendered
without any further force and effect.

SO ORDERED.[7]

28
 On the same day of 18th December 1997, petitioner Alonte filed a motion for
reconsideration. Without waiting for its resolution, Alonte filed the instant "Ex Abundante
Ad Cautelam" for "Certiorari, Prohibition, Habeas Corpus, Bail, Recusation of respondent
Judge, and for Disciplinary Action against an RTC Judge." Petitioner Concepcion later
filed his own petition for certiorari and mandamus with the Court.
Alonte submits the following grounds in support of his petition seeking to have the
decision nullified and the case remanded for new trial; thus:

The respondent Judge committed grave abuse of discretion amounting to lack

or excess of jurisdiction when he rendered a Decision in the case a
quo (Annex A) without affording the petitioner his Constitutional right to due
process of law (Article III, 1, Constitution).

The respondent Judge committed grave abuse of discretion amounting to lack

or excess of jurisdiction when he rendered a Decision in the case a quo in
violation of the mandatory provisions of the Rules on Criminal Procedure,
specifically, in the conduct and order of trial (Rule 119) prior to the
promulgation of a judgment (Rule 120; Annex A).

The respondent Judge committed grave abuse of discretion amounting to lack

or excess of jurisdiction when, in total disregard of the Revised Rules on
Evidence and existing doctrinal jurisprudence, he rendered a Decision in the
case a quo (Annex A) on the basis of two (2) affidavits (Punongbayans and
Balbins) which were neither marked nor offered into evidence by the
prosecution, nor without giving the petitioner an opportunity to cross-examine
the affiants thereof, again in violation of petitioners right to due process
(Article III, 1, Constitution).

The respondent Judge committed grave abuse of discretion amounting to lack or

excess of jurisdiction when he rendered a Decision in the case a quo without conducting
a trial on the facts which would establish that complainant was raped by petitioner (Rule
119, Article III, 1, Constitution), thereby setting a dangerous precedent where heinous
offenses can result in conviction without trial (then with more reason that simpler
offenses could end up with the same result).[8]

On the other hand, Concepcion relies on the following grounds in support of his own
petition; thus:

1. The decision of the respondent Judge rendered in the course of resolving

the prosecutions motion to dismiss the case is a patent nullity for having been
rendered without jurisdiction, without the benefit of a trial and in total violation
of the petitioners right to due process of law.

29
2. There had been no valid promulgation of judgment at least as far as
petitioner is concerned.

3. The decision had been rendered in gross violation of the right of the
accused to a fair trial by an impartial and neutral judge whose actuations and
outlook of the case had been motivated by a sinister desire to ride on the crest
of media hype that surrounded this case and use this case as a tool for his
ambition for promotion to a higher court.

4. The decision is patently contrary to law and the jurisprudence in so far as it convicts
the petitioner as a principal even though he has been charged only as an accomplice in
the information.[9]

The petitions deserve some merit; the Court will disregard, in view of the case milieu,
the prematurity of petitioners' invocation, i.e., even before the trial court could resolve
Alonte's motion for reconsideration.
The Court must admit that it is puzzled by the somewhat strange way the case has
proceeded below. Per Judge Savellano, after the waiver by the parties of the pre-trial
stage, the trial of the case did proceed on the merits but that -

"The two (2) accused did not present any countervailing evidence during the trial. They
did not take the witness stand to refute or deny under oath the truth of the contents of
the private complainant's aforementioned affidavit which she expressly affirmed and
confirmed in Court, but, instead, thru their respective lawyers, they rested and submitted
the case for decision merely on the basis of the private complainant's so called
'desistance' which, to them, was sufficient enough for their purposes. They left
everything to the so-called 'desistance' of the private complainant."[10]

According to petitioners, however, there was no such trial for what was conducted on
07 November 1997, aside from the arraignment of the accused, was merely a proceeding
in conformity with the resolution of this Court in Administrative Case No. 97-1-12-RTC to
determine the validity and voluntariness of the affidavit of desistance executed by
Punongbayan.
It does seem to the Court that there has been undue precipitancy in the conduct of
the proceedings. Perhaps the problem could have well been avoided had not the basic
procedures been, to the Court's perception, taken lightly. And in this shortcoming, looking
at the records of the case, the trial court certainly is not alone to blame.
Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the
fundamentals.

"(1) No person shall be held to answer for a criminal offense without due
process of law.

30
"(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused provided that he
has been duly notified and his failure to appear is unjustifiable."

Jurisprudence[11] acknowledges that due process in criminal proceedings, in

particular, require (a) that the court or tribunal trying the case is properly clothed with
judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully
acquired by it over the person of the accused; (c) that the accused is given an opportunity
to be heard; and (d) that judgment is rendered only upon lawful hearing. [12]
The above constitutional and jurisprudential postulates, by now elementary and
deeply imbedded in our own criminal justice system, are mandatory and
indispensable. The principles find universal acceptance and are tersely expressed in the
oft-quoted statement that procedural due process cannot possibly be met without a "law
which hears before it condemns, which proceeds upon inquiry and renders judgment only
after trial."[13]
The order of trial in criminal cases is clearly spelled out in Section 3, Rule 119, of the
Rules of Court; viz:

"Sec. 3. Order of trial. - The trial shall proceed in the following order:

"(a) The prosecution shall present evidence to prove the charge and, in the
proper case, the civil liability.

"(b) The accused may present evidence to prove his defense, and damages, if
any, arising from the issuance of any provisional remedy in the case.

"(c) The parties may then respectively present rebutting evidence only, unless
the court, in furtherance of justice, permits them to present additional
evidence bearing upon the main issue.

"(d) Upon admission of the evidence, the case shall be deemed submitted for
decision unless the court directs the parties to argue orally or to submit
memoranda.

"(e) However, when the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the order of trial may
be modified accordingly."

31
In Tabao vs. Espina,[14] the Court has underscored the need to adhere strictly to the above
rules. It reminds that -

"x x x each step in the trial process serves a specific purpose. In the trial of
criminal cases, the constitutional presumption of innocence in favor of an
accused requires that an accused be given sufficient opportunity to present
his defense. So, with the prosecution as to its evidence.

"Hence, any deviation from the regular course of trial should always take into
consideration the rights of all the parties to the case, whether in the prosecution or
defense. In the exercise of their discretion, judges are sworn not only to uphold the law
but also to do what is fair and just. The judicial gavel should not be wielded by one who
has an unsound and distorted sense of justice and fairness.[15]

While Judge Savellano has claimed in his Comment that -

"Petitioners-accused were each represented during the hearing on 07

November 1997 with their respective counsel of choice. None of their counsel
interposed an intention to cross-examine rape victim Juvielyn Punongbayan,
even after she attested, in answer to respondent judge's clarificatory
questions, the voluntariness and truth of her two affidavits - one detailing the
rape and the other detailing the attempts to buy her desistance; the
opportunity was missed/not used, hence waived. The rule of case law is that
the right to confront and cross-examine a witness 'is a personal one and may
be waived.'" (emphasis supplied) -

it should be pointed out, however, that the existence of the waiver must be positively
demonstrated. The standard of waiver requires that it "not only must be voluntary, but
must be knowing, intelligent, and done with sufficient awareness of the relevant
circumstances and likely consequences."[16] Mere silence of the holder of the right should
not be so construed as a waiver of right, and the courts must indulge every reasonable
presumption against waiver.[17] The Solicitor General has aptly discerned a few of the
deviations from what otherwise should have been the regular course of trial:
(1) Petitioners have not been directed to present evidence to prove their defenses nor
have dates therefor been scheduled for the purpose;[18] (2) the parties have not been given
the opportunity to present rebutting evidence nor have dates been set by respondent
Judge for the purpose;[19] and (3) petitioners have not admitted the act charged in the
Information so as to justify any modification in the order of trial.[20] There can be no short-
cut to the legal process, and there can be no excuse for not affording an accused his full
day in court. Due process, rightly occupying the first and foremost place of honor in our
Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most
undeserving.
This case, in fine, must be remanded for further proceedings. And, since the case
would have to be sent back to the court a quo, this ponencia has carefully avoided making

32
any statement or reference that might be misconstrued as prejudgment or as pre-empting
the trial court in the proper disposition of the case. The Court likewise deems it
appropriate that all related proceedings therein, including the petition for bail, should be
subject to the proper disposition of the trial court.
Nevertheless, it is needful to stress a few observations on the affidavit of desistance
executed by the complainant.
Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan, hereinbefore quoted,
does not contain any statement that disavows the veracity of her complaint against
petitioners but merely seeks to "be allowed to withdraw" her complaint and to discontinue
with the case for varied other reasons. On this subject, the case of People vs.
Junio,[21] should be instructive. The Court has there explained:

The appellants submission that the execution of an Affidavit of Desistance by

complainant who was assisted by her mother supported the `inherent
incredibility of prosecutions evidence is specious. We have said in so many
cases that retractions are generally unreliable and are looked upon with
considerable disfavor by the courts. The unreliable character of this document
is shown by the fact that it is quite incredible that after going through the
process of having accused-appellant arrested by the police, positively
identifying him as the person who raped her, enduring the humiliation of a
physical examination of her private parts, and then repeating her accusations
in open court by recounting her anguish, Maryjane would suddenly turn
around and declare that `[a]fter a careful deliberation over the case, (she)
find(s) that the same does not merit or warrant criminal prosecution.

Thus, we have declared that at most the retraction is an afterthought which should not
be given probative value. It would be a dangerous rule to reject the testimony taken
before the court of justice simply because the witness who has given it later on changed
his mind for one reason or another. Such a rule will make a solemn trial a mockery and
place the investigation at the mercy of unscrupulous witnesses.Because affidavits of
retraction can easily be secured from poor and ignorant witnesses, usually for monetary
consideration, the Court has invariably regarded such affidavits as exceedingly
unreliable. [Flores vs. People, 211 SCRA 622, citing De Guzman vs. Intermediate
Appellate Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.] [22]

The Junio rule is no different from ordinary criminal cases. For instance, in People vs.
Ballabare,[23] a murder case, the Court has ruled:

The contention has no merit. To begin with, the Affidavit executed by

eyewitness Tessie Asenita is not a recantation. To recant a prior statement is
to renounce and withdraw it formally and publicly. [36 WORDS AND
PHRASES 683, citing Pradlik vs. State, 41-A 2nd, 906, 907.] In her affidavit,
Tessie Asenita did not really recant what she had said during the trial. She

33
only said she wanted to withdraw her testimony because her father, Leonardo
Tacadao, Sr., was no longer interested in prosecuting the case against
accused-appellant. Thus, her affidavit stated:

3. That inasmuch as my father, Leonardo Tacadao, Sr., the complainant

therein, was no longer interested to prosecute the case as manifested in the
Sworn Affidavit of Desistance before the Provincial Prosecutor, I do hereby
WITHDRAW and/or REVOKE my testimony of record to confirm (sic) with my
fathers desire;

It is absurd to disregard a testimony that has undergone trial and scrutiny by

the court and the parties simply because an affidavit withdrawing the
testimony is subsequently presented by the defense. In the first place, any
recantation must be tested in a public trial with sufficient opportunity given to
the party adversely affected by it to cross-examine the recanting witness. In
this case, Tessie Asenita was not recalled to the witness stand to testify on
her affidavit. Her affidavit is thus hearsay. It was her husband, Roque Asenita,
who was presented and the matters he testified to did not even bear on the
substance of Tessies affidavit. He testified that accused-appellant was not
involved in the perpetration of the crime.

In the second place, to accept the new evidence uncritically would be to make a solemn
trial a mockery and place the investigation at the mercy of unscrupulous witnesses. [De
Guzman vs. Intermediate Appellate Court, 184 SCRA 128, 134, citing People vs.
Morales, 113 SCRA 683.] For even assuming that Tessie Asenita had made a
retraction, this circumstance alone does not require the court to disregard her original
testimony. A retraction does not necessarily negate an earlier declaration. [People vs.
Davatos, 229 SCRA 647.] For this reason, courts look with disfavor upon retractions
because they can easily be obtained from witnesses usually through intimidation or for
monetary considerations. [People vs. Clamor, 198 SCRA 642.] Hence, when confronted
with a situation where a witness recants his testimony, courts must not automatically
exclude the original testimony solely on the basis of the recantation. They should
determine which testimony should be given credence through a comparison of the
original testimony and the new testimony, applying the general rules of
evidence. [Reano vs. Court of Appeals, 165 SCRA 525.] In this case we think the trial
court correctly ruled.[24]

It may not be amiss to state that courts have the inherent power to compel the
attendance of any person to testify in a case pending before it, and a party is not
precluded from invoking that authority.[25]
Secondly, an affidavit of desistance by itself, even when construed as a pardon in the
so-called "private crimes," is not a ground for the dismissal of the criminal case once the
action has been instituted. The affidavit, nevertheless, may, as so earlier intimated,
possibly constitute evidence whose weight or probative value, like any other piece of

34
evidence, would be up to the court for proper evaluation. The decision in Junio went on
to hold -

While `[t]he offenses of seduction, abduction, rape or acts of lasciviousness, shall not
be prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor in any case, if the offender has been expressly pardoned
by the above named persons, as the case may be, [Third par. of Art. 344, The Revised
Penal Code.] the pardon to justify the dismissal of the complaint should have been
made prior to the institution of the criminal action. [People vs. Entes, 103 SCRA 162,
cited by People vs. Soliao, 194 SCRA 250, which in turn is cited in People vs. Villorente,
210 SCRA 647.] Here, the motion to dismiss to which the affidavit of desistance is
attached was filed after the institution of the criminal case. And, affiant did not appear to
be serious in `signifying (her) intention to refrain from testifying since she still completed
her testimony notwithstanding her earlier affidavit of desistance. More, the affidavit is
suspect considering that while it was dated `April 1992, it was only submitted sometime
in August 1992, four (4) months after the Information was filed before the court a quo on
6 April 1992, perhaps dated as such to coincide with the actual filing of the case. [26]

In People vs. Miranda,[27] applying the pertinent provisions of Article 344 of the
Revised Penal Code which, in full, states -

"Art. 344. Prosecution of the crimes of adultery, concubinage, seduction,

abduction, rape, and acts of lasciviousness. The crimes of adultery and
concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.

"The offended party cannot institute criminal prosecution without including

both the guilty parties, if they are both alive, nor, in any case, if he shall have
consented or pardoned the offenders.

"The offenses of seduction, abduction, rape or acts of lasciviousness, shall not

be prosecuted except upon a complaint filed by the offended party or her
parents, grandparents, or guardian, nor, in any case, if the offender has been
expressly pardoned by the above named persons, as the case may be.

"In cases of seduction, abduction, acts of lasciviousness and rape, the

marriage of the offender with the offended party shall extinguish the criminal
action or remit the penalty already imposed upon him. The provisions of this
paragraph shall also be applicable to the coprincipals, accomplices and
accessories after the fact of the above-mentioned crimes." -

the Court said:

35
"Paragraph 3 of the legal provision above quoted prohibits a prosecution for seduction,
abduction, rape, or acts of lasciviousness, except upon a complaint made by the
offended party or her parents, grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by the above-named persons, as the case may
be. It does not prohibit the continuance of a prosecution if the offended party pardons
the offender after the cause has been instituted, nor does it order the dismissal of said
cause. The only act that according to article 344 extinguishes the penal action and the
penalty that may have been imposed is the marriage between the offended and the
offended party."[28]

In People vs. Infante,[29] decided just a little over a month before Miranda, the Court
similarly held:

"In this court, after the case had been submitted, a motion to dismiss was filed on behalf
of the appellant predicated on an affidavit executed by Manuel Artigas, Jr., in which he
pardoned his guilty spouse for her infidelity. But this attempted pardon cannot prosper
for two reasons. The second paragraph of article 344 of the Revised Penal Code which
is in question reads: 'The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in any case, if he shall have
consented or pardoned the offenders.' This provision means that the pardon afforded
the offenders must come before the institution of the criminal prosecution, and means,
further, that both the offenders must be pardoned by the offended party. To elucidate
further, article 435 of the old Penal Code provided: 'The husband may at any time remit
the penalty imposed upon his wife. In such case the penalty imposed upon the wife's
paramour shall also be deemed to be remitted.' These provisions of the old Penal Code
became inoperative after the passage of Act No. 1773, section 2, which had the effect
of repealing the same. The Revised Penal Code thereafter expressly repealed the old
Penal Code, and in so doing did not have the effect of reviving any of its provisions
which were not in force. But with the incorporation of the second paragraph of article
344, the pardon given by the offended party again constitutes a bar to the prosecution
for adultery. Once more, however, it must be emphasized that this pardon must come
before the institution of the criminal prosecution and must be for both offenders to be
effective - circumstances which do not concur in this case."[30]

The decisions speak well for themselves, and the Court need not say more than what
it has heretofore already held.
Relative to the prayer for the disqualification of Judge Savellano from further hearing
the case, the Court is convinced that Judge Savellano should, given the circumstances,
be best excused from the case.Possible animosity between the personalities here
involved may not all be that unlikely. The pronouncement of this Court in the old case
of Luque vs. Kayanan[31] could again be said: All suitors are entitled to nothing short of the
cold neutrality of an independent, wholly-free, disinterested and unbiased
tribunal. Second only to the duty of rendering a just decision is the duty of doing it in a
manner that will not arouse any suspicion as to the fairness and integrity of the Judge.[32] It
is not enough that a court is impartial, it must also be perceived as impartial.

36
 The Court cannot end this ponencia without a simple reminder on the use of proper
language before the courts. While the lawyer in promoting the cause of his client or
defending his rights might do so with fervor, simple courtesy demands that it be done
within the bounds of propriety and decency. The use of intemperate language and unkind
ascriptions hardly can be justified nor can have a place in the dignity of judicial
forum. Civility among members of the legal profession is a treasured tradition that must
at no time be lost to it.
Finally, it may be opportune to say, once again, that prosecutors are expected not
merely to discharge their duties with the highest degree of excellence, professionalism
and skill but also to act each time with utmost devotion and dedication to duty. [33] The
Court is hopeful that the zeal which has been exhibited many times in the past, although
regrettably a disappointment on few occasions, will not be wanting in the proceedings yet
to follow.
WHEREFORE, conformably with all the foregoing, the Court hereby RULES that -

(a) The submission of the "Affidavit of Desistance," executed by Juvie-Lyn Y.

Punongbayan on 25 June 1997, having been filed AFTER the institution of
Criminal Case No. 97-159935, DOES NOT WARRANT THE DISMISSAL of
said criminal case;

(b) For FAILURE OF DUE PROCESS, the assailed judgment, dated 12

December 1997, convicting petitioners is declared NULL AND VOID and
thereby SET ASIDE; accordingly, the case is REMANDED to the trial court for
further proceedings; and

(c) Judge Maximo A. Savellano, Jr., presiding Judge of Branch 53 of the

Regional Trial Court of Manila, is ENJOINED from further hearing Criminal
Case No. 97-159935; instead, the case shall immediately be scheduled for
raffle among the other branches of that court for proper disposition.
G.R. No. 104961 October 7, 1994

CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK
FORCE, respondents.

Ronolfo S. Pasamba for petitioner.

BELLOSILLO, JR., J.:

PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following
resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being

37
unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated
23 April 1992, for want of legal and factual bases.

The factual backdrop: In preparation for the synchronized national and local elections scheduled on
11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution
No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing,
carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards,
on bearing arms by members of security agencies or police organizations, and organization or
maintenance of reaction forces during the election period.1 Subsequently, on 26 December 1991
COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates
engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and
establishing spot checkpoints.2

On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House
of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan
requesting the return of the two (2) firearms3 issued to him by the House of Representatives. Upon
being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his
driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return
them to Congress.

Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police
(PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan
Complex some twenty (20) meters away from its entrance. About thirty minutes later, the policemen
manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They
searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the
trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by
petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad of the
House of Representatives.

Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The
referral did not include petitioner as among those charged with an election offense. On 15 January
1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation
meritorious.4

On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances
mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary
investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to
exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was
complying with it when apprehended by returning the firearms to Congress; and, that he was
petitioner's driver, not a security officer nor a bodyguard.5

On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters,
recommended that the case against Arellano be dismissed and that the "unofficial" charge against
petitioner be also dismissed.6

Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued
Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation
of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to
Sec. 32 of R.A. No. 7166;7 and petitioner to show cause why he should not be disqualified from
running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32,
33 and 35 of R.A. 7166, and
Sec. 52, par. (c), of B.P. Blg. 881.8

38
On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative
proceedings as well as the filing of the information in court.9 On 23 April 1992, the COMELEC denied
petitioner's motion for reconsideration.10 Hence, this recourse.

Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and
regulations of an administrative body must respect the limits defined by law; that the Omnibus
Election Code provides for the disqualification of any person/candidate from running for or holding a
public office, i.e., any person who has either been declared by competent authority as insane or
incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for
any offense for which he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons
and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the
Code; that the resolution did away with the requirement of final conviction before the commission of
certain offenses; that instead, it created a presumption of guilt as a candidate may be disqualified
from office in situations (a) where the criminal charge is still pending, (b) where there is no pending
criminal case, and (c) where the accused has already been acquitted, all contrary to the requisite
quantum of proof for one to be disqualified from running or holding public office under the Omnibus
Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No.
2327 violates the fundamental law thus rendering it fatally defective.

But, the issue on the disqualification of petitioner from running in the

11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress
in the elections that ensued. Consequently, it is now futile to discuss the implications of the charge
against him on his qualification to run for public office.

However, there still remains an important question to be resolved, i.e., whether he can be validly
prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of
Representatives the two firearms issued to him on the basis of the evidence gathered from the
warrantless search of his car.

Petitioner strongly protests against the manner by which the PNP conducted the search. According
to him, without a warrant and without informing the driver of his fundamental rights the policemen
searched his car. The firearms were not tucked in the waist nor within the immediate reach of
Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car.
Thus, the search of his car that yielded the evidence for the prosecution was clearly violative of
Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11

Petitioner further maintains that he was neither impleaded as party respondent in the preliminary
investigation before the Office of the City Prosecutor nor included in the charge sheet.
Consequently, making him a respondent in the criminal information would violate his constitutional
right to due process.

Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate
for public office during the election period from employing or availing himself or engaging the
services of security personnel or bodyguards since, admittedly, Arellano was not a security officer or
bodyguard but a civilian employee assigned to him as driver by the House of Representatives.
Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the
firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no
law was in fact violated. 12

39
On 25 June 1992, we required COMELEC to file its own comment on the
petition13 upon manifestation of the Solicitor General that it could not take the position of COMELEC
and prayed instead to be excused from filing the required comment. 14

COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec.
263, of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in
the Revised Penal Code, shall be criminally liable for election offenses." It points out that it was upon
petitioner's instruction that Arellano brought the firearms in question outside petitioner's residence,
submitting that his right to be heard was not violated as he was invited by the City Prosecutor to
explain the circumstances regarding Arellano's possession of the firearms. Petitioner also filed a
sworn written explanation about the incident. Finally, COMELEC claims that violation of
the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15

Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No.
2327 since this petition may be resolved without passing upon this particular issue. 16

As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate
authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless
search had been upheld in cases of moving vehicles and the seizure of evidence in plain view,17 as
well as the search conducted at police or military checkpoints which we declared are not illegal per
se, and stressed that the warrantless search is not violative of the Constitution for as long as the
vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the
vehicle is merely limited to a visual search. 18

Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and
that they were neatly packed in gun cases and placed inside a bag at the back of the car.
Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which
the package was bundled led the PNP to suspect that it contained firearms. There was no mention
either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the
car was stopped and searched. Given these circumstances and relying on its visual observation, the
PNP could not thoroughly search the car lawfully as well as the package without violating the
constitutional injunction.

An extensive search without warrant could only be resorted to if the officers conducting the search
had reasonable or probable cause to believe before the search that either the motorist was a law
offender or that they would find the instrumentality or evidence pertaining to the commission of a
crime in the vehicle to be searched.19 The existence of probable cause justifying the warrantless
search is determined by the facts of each case.20 Thus, we upheld the validity of the warrantless
search in situations where the smell of marijuana emanated from a plastic bag owned by the
accused, or where the accused was acting suspiciously, and attempted to flee. 21

We also recognize the stop-and-search without warrant conducted by police officers on the basis of
prior confidential information which were reasonably corroborated by other attendant matters, e.g.,
where a confidential report that a sizeable volume of marijuana would be transported along the route
where the search was conducted and appellants were caught in flagrante delicto transporting drugs
at the time of their arrest; 22 where apart from the intelligence information, there were reports by an
undercover "deep penetration" agent that appellants were bringing prohibited drugs into the
country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs
was strengthened by the conspicuous bulge in accused's waistline, and his suspicious failure to
produce his passport and other identification papers;24 where the physical appearance of the
accused fitted the description given in the confidential information about a woman transporting
marijuana;25 where the accused carrying a bulging black leather bag were suspiciously quiet and

40
nervous when queried about its contents;26 or where the identity of the drug courier was already
established by police authorities who received confidential information about the probable arrival of
accused on board one of the vessels arriving in Dumaguete City. 27

In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to
the Batasan Complex to enforce Resolution
No. 2327. There was no evidence to show that the policemen were impelled to do so because of a
confidential report leading them to reasonably believe that certain motorists matching the description
furnished by their informant were engaged in gunrunning, transporting firearms or in organizing
special strike forces. Nor, as adverted to earlier, was there any indication from the package or
behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying
circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not
be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the
security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms
obtained in violation of petitioner's right against warrantless search cannot be admitted for any
purpose in any proceeding.

It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied
waiver of petitioner's right to question the reasonableness of the search of the vehicle and the
seizure of the firearms.

While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that
"guidelines shall be made to ensure that no infringement of civil and political rights results from the
implementation of this authority," and that "the places and manner of setting up of checkpoints shall
be determined in consultation with the Committee on Firearms Ban and Security Personnel created
under Sec. 5, Resolution No. 2323."28 The facts show that PNP installed the checkpoint at about five
o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes
later. It was not shown that news of impending checkpoints without necessarily giving their locations,
and the reason for the same have been announced in the media to forewarn the citizens. Nor did the
informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As
a result, motorists passing that place did not have any inkling whatsoever about the reason behind
the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists
did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout
albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist
and to conduct an extensive search of his vehicle.

In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of
fourteen (14) armed policemen conducting the operation,29 driver Arellano being alone and a mere
employee of petitioner could not have marshalled the strength and the courage to protest against the
extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was
any, could not be more than a mere passive conformity on Arellano's part to the search, and
"consent" given under intimidating or coercive circumstances is no consent within the purview of the
constitutional guaranty.

Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due
process clause of the Constitution. The facts show that petitioner was not among those charged by
the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor
to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the
petitioner that he was a respondent in the preliminary investigation is violative of due process which
requires that the procedure established by law should be obeyed. 30

41
COMELEC argues that petitioner was given the change to be heard because he was invited to
enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that
petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy
the requirement of due process the essence of which is the reasonable opportunity to be heard and
to submit any evidence one may have in support of his defense.31 Due process guarantees the
observance of both substantive and procedural rights, whatever the source of such rights, be it the
Constitution itself or only a statute or a rule of court. 32 In Go v. Court of Appeals,33 we held
that —

While the right to preliminary investigation is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part of
due process in criminal justice. The right to have a preliminary investigation
conducted before being bound over to trial for a criminal offense and hence formally
at risk of incarceration or some other penalty is not a mere formal or technical right; it
is a substantive right . . . . [T]he right to an opportunity to avoid a process painful to
anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him of the full measure of his
right to due process.

Apparently, petitioner was merely invited during the preliminary investigation of Arellano to
corroborate the latter's explanation. Petitioner then was made to believe that he was not a party
respondent in the case, so that his written explanation on the incident was only intended to
exculpate Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner
was fully given the opportunity to meet the accusation against him as he was not apprised that he
was himself a respondent when he appeared before the City Prosecutor.

Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with
COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for
himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's
protestation started as soon as he learned of his inclusion in the charge, and did not ease up even
after COMELEC's denial of his motion for reconsideration. This is understandably so since the
prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year
nor more than six (6) years without probation and with disqualification from holding public office, and
deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his
right to a preliminary investigation.

WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the
Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the
warrantless search cannot be used as evidence in any proceeding against petitioner. Consequently,
COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET
ASIDE.

The temporary restraining order we issued on 5 May 1992 is made permanent.

SO ORDERED.

Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur.

Feliciano, Padilla and Bidin, JJ., are on leave.

42
 Separate Opinions

CRUZ, J., concurring:

I concur, and reiterate my objections to checkpoints in general as originally expressed in my dissent

in the case of Valmonte v. De Villa, 178 SCRA 217, where I said:

The sweeping statements in the majority opinion are as dangerous as the

checkpoints it would sustain and fraught with serious threats to individual liberty. The
bland declaration that individual rights must yield to the demands of national security
ignores the fact that the Bill of Rights was intended precisely to limit the authority of
the State even if asserted on the ground of national security. What is worse is that
the searches and seizures are peremptorily pronounced to be reasonable even
without proof of probable cause and much less the required warrant. The improbable
excuse is that they are aimed at "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." For these
purposes, every individual may be stopped and searched at random and at any time
simply because he excites the suspicion, caprice, hostility or malice of the officers
manning the checkpoints, on pain of arrest or worse, even being shot to death, if he
resists.

xxx xxx xxx

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the
truncheon and the barbed wire, with the Court itself a captive of its own
complaisance and sitting at the death-bed of liberty.

I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on
checkpoints and finally dismantle them altogether as an affront to individual liberty.

VITUG, J., concurring:

The ultimate hypothesis of sound governance is not might but the willingness of the governed to
accept and subordinate themselves to authority.

When our people gave their consent to the fundamental law of the land, they did not renounce but,
to the contrary, reserved for themselves certain rights that they held sacred and inviolable.

One such right is the privilege to be so secured "in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose." Their sole
conceded proviso to this rule is when a search warrant or a warrant of arrest is lawfully issued.
There are, to be sure, known exceptions, predicated on necessity and justified by good reasons,
when warrantless searches and seizures are allowed. It is in this context that I appreciate the ratio

43
decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the
installation of checkpoints, the Court clearly has based its decision on the existence at the time of
what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did
not have the intention to have its ruling continue to apply to less aberrant circumstances than
previously obtaining.

The question has been asked: Between the security of the State and its due preservation, on the
one hand, and the constitutionally-guaranteed right of an individual, on the other hand, which should
be held to prevail? There is no choice to my mind not for any other reason than because there is, in
the first place, utterly no need to make a choice. The two are not incompatible; neither are they
necessarily opposed to each other. Both can be preserved; indeed, the vitality of one is the strength
of the other.

There should be ways to curb the ills of society so severe as they might seem. A disregard of
constitutional mandates or an abuse on the citizenry, I am most certain, is not the answer. It might
pay to listen to the words of Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our
rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the
Court itself a captive of its own complaisance and sitting at the death-bed of liberty."

It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the
Court has expressed:

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 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.

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.

While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N.
Bellosillo, in hisponencia, I would express, nonetheless, the humble view that even on the above
constitutional aspect, the petition could rightly be granted.

REGALADO, J., concurring and dissenting:

I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with
respect to petitioner Aniag, Resolution No. 92-0829 of respondent commission should be set aside,
not because of an unconstitutional warrantless search but by reason of the fact that he was not
actually charged as a respondent in the preliminary investigation of the case.

With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner
in the present recourse, the nullification of said Resolution No. 92-0829 necessarily applies to him
and redounds to his benefit. To the extent, therefore, that the majority opinion thereby reinstate the
resolution of the Office of the City Prosecutor dismissing the charge against Arellano, I concur in that
result.

44
However, even as a simple matter of consistency but more in point of law, I dissent from the
rationale submitted therefor, that is, that Arellano was the victim of an unlawful search without a
warrant. The pertinent facts stated by the majority readily yield the conclusion that there was consent
on the part of Arellano to the search of the car then under his control, particularly of its baggage
compartment where the firearms were discovered. As held in People vs. Excela, et al.,1 consent to a
search may be given expressly or impliedly, and as early as People vs. Malasugui,2the settled rule is
that a search may be validly conducted without a warrant if the person searched consented thereto.

I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he
was acting in obedience to what he innocently believed to be a lawful order of a superior, that is, the
instructions of his employer, petitioner Aniag, who was himself acting upon and in compliance with
Resolution No. 2323 of respondent commission which was implemented by the Sergeant-at-Arms of
the House of Representatives.

The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can
be given suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10
of the same Code. There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation
to R.A. No. 7166, nor is there any legal impossibility for such suppletory application whether by
express provision or by necessary implication. And even if the order of petitioner Aniag may be
considered as illegal, Arellano acted thereon in good faith3 and under a mistake of fact as to its
legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat.

It being evident from the very records and the factual findings adopted in the majority opinion that no
error was committed by the Office of the City Prosecutor in dismissing the charge against Ernesto
Arellano for lack of sufficient grounds to engender a well founded belief that a crime had been
committed and that he was probably guilty thereof, 4 respondent commission acted with grave abuse
of discretion in arriving at a contrary conclusion and directing his prosecution in its Resolution No.
92-0829.

DAVIDE, JR., J., concurring and dissenting:

I regret that I can concur only in the result, viz., the granting of the petition.

Considering the specific issues raised by the petitioner which, as stated in the exordium of the
majority opinion, are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is
unconstitutional, and (b) COMELEC Resolutions No. 92-0829, dated 6 April 1992, and No. 92-0999,
dated 23 April 1992, have legal and factual bases, I am unable to agree with the specific disposition
declaring (a) illegal the warrantless search conducted by the Philippine National Police (PNP) on 13
January 1992, (b) inadmissible
in evidence in any proceeding against the petitioner the firearms seized during such warrantless
search, and (c) unconstitutional COMELEC Resolution
No. 92-0829.

1. Having declined to rule on the constitutionality of Resolution

No. 2327 because "this petition may be resolved without passing upon this particular issue" (first
paragraph, page 10, Ponencia), this Court may no longer inquire into the constitutionality of the spot
checkpoints authorized to be established thereunder. And whether the warrantless search
conducted by the PNP at the checkpoint was valid, it being assumed that it would have been,
provided there existed a probable cause therefor, is a question of fact whose presentation in this
case is either procedurally premature, or one which this Court cannot, with definiteness, resolve
considering the obvious paucity of the facts before it. The most the majority opinion can state is that
"[t]here was no evidence to show that the police were impelled to do so because of a confidential

45
report leading them to reasonably believe that certain motorists matching the description furnished
by their informant were engaged in gunrunning, transporting firearms or in organizing special strike
forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano
that could have triggered the suspicion of the policemen." Nothing more could be expected at this
stage since the records of the proceedings conducted by the Office of the City Prosecutor and the
COMELEC are not before this Court. A declaration of invalidity of the warrantless search and of the
inadmissibility in evidence of the firearms seized would thus be premature.

It may additionally be relevant to state that the search was not in connection with the crime of illegal
possession of firearms, which would have been factually and legally baseless since the firearms
involved were licensed and were duly issued to the petitioner by the House of Representatives, but
for the violation of the gun ban which was validly decreed by the COMELEC pursuant to its
constitutional power to enforce and administer all laws and regulations relative to the conduct of
elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution),
its statutory authority to have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections
(Section 52, Omnibus Election Code), and its statutory authority to promulgate rules and regulations
implementing the provisions of the Omnibus Election Code or other laws which the COMELEC is
required to enforce and administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to
paragraph (q), Section 261 of the Omnibus Election Code which prohibits the carrying of firearms
outside the residence or place of business during the election period unless authorized in writing by
the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from bearing, carrying,
or transporting firearms or other deadly weapons in public places, including any building, street,
park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the
same during the election period, unless authorized in writing by the COMELEC.

In this case, the petitioner himself admits that on 10 January 1992 he was requested by the
Sergeant-at-Arms of the House of Representatives to return the two firearms issued to him, and that
on 13 January 1992, he instructed his driver, Ernesto Arellano, to pick up the firearms from his
(petitioner's) house at Valle Verde and to return them to the House of Representatives. That day was
already within the election period, which commenced the day earlier pursuant to COMELEC
Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in Connection With the
Elections of National and Local Officials on May 11, 1992), promulgated on 20 November 1991.
Considering then that the offense for which he was to be charged was for the violation of paragraph
(q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in
view of his aforesaid admissions, renders unnecessary the offer in evidence of the seized firearms, I
fail to grasp the rationale of a ruling on the admissibility in evidence of the firearms.

2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on the ground of
unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano
for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No.
7166, and directed the petitioner to show cause why he should not be disqualified from running for
an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sections 32, 33, and
35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus Election Code. Insofar as
Arellano is concerned, he is not a petitioner in this case. Moreover, as to him, the resolution was
nothing more than a disapproval of the recommendation of the Office of the City Prosecutor to
dismiss the complaint against him. As against the petitioner, there was no denial of due process
because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an
accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory
(Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa,
Inc. vs. Dominguez, 205 SCRA 92 [1992]).

46
The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the
petitioner despite the fact that he was never formally charged before the Office of the City
Prosecutor. There was only an "'unofficial' charge imputed against" him. The COMELEC then acted
with grave abuse of discretion amounting to want or excess of jurisdiction.

I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse
of discretion in directing the filing of an information against the petitioner for the violation of
paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166.

Melo, J., concurs.

# Separate Opinions

CRUZ, J., concurring:

I concur, and reiterate my objections to checkpoints in general as originally expressed in my dissent

in the case of Valmonte v. De Villa, 178 SCRA 217, where I said:

The sweeping statements in the majority opinion are as dangerous as the

checkpoints it would sustain and fraught with serious threats to individual liberty. The
bland declaration that individual rights must yield to the demands of national security
ignores the fact that the Bill of Rights was intended precisely to limit the authority of
the State even if asserted on the ground of national security. What is worse is that
the searches and seizures are peremptorily pronounced to be reasonable even
without proof of probable cause and much less the required warrant. The improbable
excuse is that they are aimed at "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." For these
purposes, every individual may be stopped and searched at random and at any time
simply because he excites the suspicion, caprice, hostility or malice of the officers
manning the checkpoints, on pain of arrest or worse, even being shot to death, if he
resists.

xxx xxx xxx

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the
truncheon and the barbed wire, with the Court itself a captive of its own
complaisance and sitting at the death-bed of liberty.

I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on
checkpoints and finally dismantle them altogether as an affront to individual liberty.

VITUG, J., concurring:

The ultimate hypothesis of sound governance is not might but the willingness of the governed to
accept and subordinate themselves to authority.

47
When our people gave their consent to the fundamental law of the land, they did not renounce but,
to the contrary, reserved for themselves certain rights that they held sacred and inviolable.

One such right is the privilege to be so secured "in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose." Their sole
conceded proviso to this rule is when a search warrant or a warrant of arrest is lawfully issued.
There are, to be sure, known exceptions, predicated on necessity and justified by good reasons,
when warrantless searches and seizures are allowed. It is in this context that I appreciate the ratio
decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the
installation of checkpoints, the Court clearly has based its decision on the existence at the time of
what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did
not have the intention to have its ruling continue to apply to less aberrant circumstances than
previously obtaining.

The question has been asked: Between the security of the State and its due preservation, on the
one hand, and the constitutionally-guaranteed right of an individual, on the other hand, which should
be held to prevail? There is no choice to my mind not for any other reason than because there is, in
the first place, utterly no need to make a choice. The two are not incompatible; neither are they
necessarily opposed to each other. Both can be preserved; indeed, the vitality of one is the strength
of the other.

There should be ways to curb the ills of society so severe as they might seem. A disregard of
constitutional mandates or an abuse on the citizenry, I am most certain, is not the answer. It might
pay to listen to the words of Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our
rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the
Court itself a captive of its own complaisance and sitting at the death-bed of liberty."

It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the
Court has expressed:

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 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.

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.

While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N.
Bellosillo, in hisponencia, I would express, nonetheless, the humble view that even on the above
constitutional aspect, the petition could rightly be granted.

REGALADO, J., concurring and dissenting:

I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with
respect to petitioner Aniag, Resolution No. 92-0829 of respondent commission should be set aside,

48
not because of an unconstitutional warrantless search but by reason of the fact that he was not
actually charged as a respondent in the preliminary investigation of the case.

With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner
in the present recourse, the nullification of said Resolution No. 92-0829 necessarily applies to him
and redounds to his benefit. To the extent, therefore, that the majority opinion thereby reinstate the
resolution of the Office of the City Prosecutor dismissing the charge against Arellano, I concur in that
result.

However, even as a simple matter of consistency but more in point of law, I dissent from the
rationale submitted therefor, that is, that Arellano was the victim of an unlawful search without a
warrant. The pertinent facts stated by the majority readily yield the conclusion that there was consent
on the part of Arellano to the search of the car then under his control, particularly of its baggage
compartment where the firearms were discovered. As held in People vs. Excela, et al.,1 consent to a
search may be given expressly or impliedly, and as early as People vs. Malasugui,2the settled rule is
that a search may be validly conducted without a warrant if the person searched consented thereto.

I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he
was acting in obedience to what he innocently believed to be a lawful order of a superior, that is, the
instructions of his employer, petitioner Aniag, who was himself acting upon and in compliance with
Resolution No. 2323 of respondent commission which was implemented by the Sergeant-at-Arms of
the House of Representatives.

The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can
be given suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10
of the same Code. There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation
to R.A. No. 7166, nor is there any legal impossibility for such suppletory application whether by
express provision or by necessary implication. And even if the order of petitioner Aniag may be
considered as illegal, Arellano acted thereon in good faith3 and under a mistake of fact as to its
legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat.

It being evident from the very records and the factual findings adopted in the majority opinion that no
error was committed by the Office of the City Prosecutor in dismissing the charge against Ernesto
Arellano for lack of sufficient grounds to engender a well founded belief that a crime had been
committed and that he was probably guilty thereof, 4 respondent commission acted with grave abuse
of discretion in arriving at a contrary conclusion and directing his prosecution in its Resolution No.
92-0829.

DAVIDE, JR., J., concurring and dissenting:

I regret that I can concur only in the result, viz., the granting of the petition.

Considering the specific issues raised by the petitioner which, as stated in the exordium of the
majority opinion, are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is
unconstitutional, and (b) COMELEC Resolutions No. 92-0829, dated 6 April 1992, and No. 92-0999,
dated 23 April 1992, have legal and factual bases, I am unable to agree with the specific disposition
declaring (a) illegal the warrantless search conducted by the Philippine National Police (PNP) on 13
January 1992, (b) inadmissible
in evidence in any proceeding against the petitioner the firearms seized during such warrantless
search, and (c) unconstitutional COMELEC Resolution
No. 92-0829.

49
1. Having declined to rule on the constitutionality of Resolution
No. 2327 because "this petition may be resolved without passing upon this particular issue" (first
paragraph, page 10, Ponencia), this Court may no longer inquire into the constitutionality of the spot
checkpoints authorized to be established thereunder. And whether the warrantless search
conducted by the PNP at the checkpoint was valid, it being assumed that it would have been,
provided there existed a probable cause therefor, is a question of fact whose presentation in this
case is either procedurally premature, or one which this Court cannot, with definiteness, resolve
considering the obvious paucity of the facts before it. The most the majority opinion can state is that
"[t]here was no evidence to show that the police were impelled to do so because of a confidential
report leading them to reasonably believe that certain motorists matching the description furnished
by their informant were engaged in gunrunning, transporting firearms or in organizing special strike
forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano
that could have triggered the suspicion of the policemen." Nothing more could be expected at this
stage since the records of the proceedings conducted by the Office of the City Prosecutor and the
COMELEC are not before this Court. A declaration of invalidity of the warrantless search and of the
inadmissibility in evidence of the firearms seized would thus be premature.

It may additionally be relevant to state that the search was not in connection with the crime of illegal
possession of firearms, which would have been factually and legally baseless since the firearms
involved were licensed and were duly issued to the petitioner by the House of Representatives, but
for the violation of the gun ban which was validly decreed by the COMELEC pursuant to its
constitutional power to enforce and administer all laws and regulations relative to the conduct of
elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution),
its statutory authority to have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections
(Section 52, Omnibus Election Code), and its statutory authority to promulgate rules and regulations
implementing the provisions of the Omnibus Election Code or other laws which the COMELEC is
required to enforce and administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to
paragraph (q), Section 261 of the Omnibus Election Code which prohibits the carrying of firearms
outside the residence or place of business during the election period unless authorized in writing by
the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from bearing, carrying,
or transporting firearms or other deadly weapons in public places, including any building, street,
park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the
same during the election period, unless authorized in writing by the COMELEC.

In this case, the petitioner himself admits that on 10 January 1992 he was requested by the
Sergeant-at-Arms of the House of Representatives to return the two firearms issued to him, and that
on 13 January 1992, he instructed his driver, Ernesto Arellano, to pick up the firearms from his
(petitioner's) house at Valle Verde and to return them to the House of Representatives. That day was
already within the election period, which commenced the day earlier pursuant to COMELEC
Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in Connection With the
Elections of National and Local Officials on May 11, 1992), promulgated on 20 November 1991.
Considering then that the offense for which he was to be charged was for the violation of paragraph
(q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in
view of his aforesaid admissions, renders unnecessary the offer in evidence of the seized firearms, I
fail to grasp the rationale of a ruling on the admissibility in evidence of the firearms.

2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on the ground of
unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano
for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No.
7166, and directed the petitioner to show cause why he should not be disqualified from running for
an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sections 32, 33, and

50
35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus Election Code. Insofar as
Arellano is concerned, he is not a petitioner in this case. Moreover, as to him, the resolution was
nothing more than a disapproval of the recommendation of the Office of the City Prosecutor to
dismiss the complaint against him. As against the petitioner, there was no denial of due process
because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an
accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory
(Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa,
Inc. vs. Dominguez, 205 SCRA 92 [1992]).

The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the
petitioner despite the fact that he was never formally charged before the Office of the City
Prosecutor. There was only an "'unofficial' charge imputed against" him. The COMELEC then acted
with grave abuse of discretion amounting to want or excess of jurisdiction.

I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse
of discretion in directing the filing of an information against the petitioner for the violation of
paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166.

Melo, J., concurs.

SPOUSES CARLOS S. G. R. No. 167011

ROMUALDEZ and ERLINDA R.
ROMUALDEZ, Present:
Petitioners,
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
- versus - TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

Promulgated:
COMMISSION ON ELECTIONS
and DENNIS GARAY, December 11, 2008
Respondents.

51
 x--------------------------------------------------x

RESOLUTION

CHICO-NAZARIO, J.:

For resolution is the Motion for Reconsideration filed by petitioner Spouses Carlos
Romualdez and Erlinda Romualdez on 26 May 2008 from the Decision of this Court
dated 30 April 2008, affirming the Resolutions, dated 11 June 2004 and 27 January
2005 of the COMELEC En Banc.

We find that petitioner has not raised substantially new grounds to justify the
reconsideration sought. Instead, petitioner presents averments that are mere rehashes
of arguments already considered by the Court. There is, thus, no cogent reason to
warrant a reconsideration of this Courts Decision.
Similarly, we reject the contentions put forth by esteemed colleagues Mr. Justice
Dante O. Tinga in his Dissent, dated 2 September 2008, which are also mere
reiterations of his earlier dissent against the majority opinion. Mr. Justice Tingas
incessant assertions proceed from the wrong premise. To be clear, this Court did not
intimate that penal statutes are beyond scrutiny. In our Decision, dated 30 April
2008, this Court emphasized the critical limitations by which a criminal statute may
be challenged. We drew a lucid boundary between an on-its-face invalidation and an
as applied challenge.Unfortunately, this is a distinction which Mr. Justice Tinga has
refused to understand. Let it be underscored that on-its-face invalidation of penal
statutes, as is sought to be done by petitioners in this case, may not be allowed. Thus,
we said:

The void-for-vagueness doctrine holds that a law is facially invalid if men of

common intelligence must necessarily guess at its meaning and differ as to its
application. However, this Court has imposed certain limitations by which a
criminal statute, as in the challenged law at bar, may be scrutinized. This Court has
declared that facial invalidation or an on-its-face invalidation of criminal statutes is
not appropriate. We have so enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, thus:
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech cases
or, as they are called in American law, First Amendment cases. They cannot be
made to do service when what is involved is a criminal statute. With respect to such
52
 statute, the established rule is that 'one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it
might also be taken as applying to other persons or other situations in which its
application might be unconstitutional.' As has been pointed out, 'vagueness
challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular defendant.'"
(underscoring supplied)

"To this date, the Court has not declared any penal law unconstitutional on the
ground of ambiguity." While mentioned in passing in some cases, the void-for-
vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong
Eng v. Trinidad, the Bookkeeping Act was found unconstitutional because it
violated the equal protection clause, not because it was vague. Adiong v.
Comelec decreed as void a mere Comelec Resolution, not a statute.
Finally, Santiago v. Comelec held that a portion of RA 6735 was unconstitutional
because of undue delegation of legislative powers, not because of vagueness.

Indeed, an "on-its-face" invalidation of criminal statutes would result in a

mass acquittal of parties whose cases may not have even reached the courts.
Such invalidation would constitute a departure from the usual requirement of
"actual case and controversy" and permit decisions to be made in a sterile
abstract context having no factual concreteness. In Younger v. Harris, this evil
was aptly pointed out by the U.S. Supreme Court in these words:

"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and

requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-
line analysis of detailed statutes, x x x ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided."

For this reason, generally disfavored is an on-its-face invalidation of statutes,

described as a "manifestly strong medicine" to be employed "sparingly and
only as a last resort." In determining the constitutionality of a statute,
therefore, its provisions that have allegedly been violated must be examined in
the light of the conduct with which the defendant has been charged. (Emphasis
supplied.)[1]

Neither does the listing by Mr. Justice Tinga of what he condemns as offenses
under Republic Act No. 8189 convince this Court to overturn its ruling. What is
crucial in this case is the rule set in our case books and precedents that a facial

53
challenge is not the proper avenue to challenge the statute under consideration. In
our Decision of 30 April 2008, we enunciated that the opinions of the dissent which
seek to bring to the fore the purported ambiguities of a long list of provisions in
Republic Act No. 8189 can be deemed as a facial challenge.[2] On this matter, we
held:

An appropriate as applied challenge in the instant Petition should be limited

only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No.
8189the provisions upon which petitioners are charged. An expanded examination
of the law covering provisions which are alien to petitioners case would be
antagonistic to the rudiment that for judicial review to be exercised, there must be
an existing case or controversy that is appropriate or ripe for determination, and not
conjectural or anticipatory.[3]

In conclusion, I reiterate that the doctrine embodied

in Romualdez and Estrada remains good law. The rule established in our
jurisdiction is, only statutes on free speech, religious freedom, and other fundamental
rights may be facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is obvious. If a facial challenge to a
penal statute is permitted, the prosecution of crimes maybe hampered. No
prosecution would be possible. A strong criticism against employing a facial
challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a
penal statute is, at best, amorphous and speculative. It would, essentially, force the
court to consider third parties who are not before it. As I have said in my opposition
to the allowance of a facial challenge to attack penal statutes, such a test will impair
the States ability to deal with crime. If warranted, there would be nothing that can
hinder an accused from defeating the States power to prosecute on a mere showing
that, as applied to third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him.

As structured, Section 45 enumerates acts deemed election offenses under

Republic Act No. 8189. The evident intent of the legislature in including in the
catena of election offenses the violation of any of the provisions of Republic Act No.
8189, is to subsume as punishable, not only the commission of proscribed acts, but
also the omission of acts enjoined to be observed. On this score, the declared policy
of Republic Act No. 8189 is illuminating. The law articulates the policy of the State

54
to systematize the present method of registration in order to establish a clean,
complete, permanent and updated list of voters.

In People v. Gatchalian, the Court had the occasion to rule on the validity of
the provision of the Minimum Wage Law, which in like manner speaks of a willful
violation of any of the provisions of this Act. This Court upheld the assailed law,
and in no uncertain terms declared that the provision is all-embracing, and the same
must include what is enjoined in the Act which embodies the very fundamental
purpose for which the law has been adopted.

Finally, as the records would show, petitioners managed to set up an

intelligent defense against the informations filed below. By clearly enunciating their
defenses against the accusations hurled at them, and denying their commission
thereof, petitioners allegation of vagueness must necessarily be rejected. Petitioners
failed to overcome the heavy presumption of constitutionality in favor of the
law. The constitutionality must prevail in the absence of substantial grounds for
overthrowing the same.

The phraseology in Section 45(j) has been employed by Congress in a number

of laws which have not been declared unconstitutional:

1) The Cooperative Code

Section 124(4) of Republic Act No. 6938 reads:

Any violation of any provision of this Code for which no penalty
is imposed shall be punished by imprisonment of not less than six (6)
months nor more than one (1) year and a fine of not less than One
Thousand Pesos (P1,000.00) or both at the discretion of the Court.

2) The Indigenous Peoples Rights Act

Section 72 of Republic Act No. 8371 reads in part:

Any person who commits violation of any of the provisions of
this Act, such as, but not limited to

3) The Retail Trade Liberalization Act

Section 12, Republic Act No. 8762, reads:

55
 Any person who would be found guilty of violation of any
provisions of this Act shall be punished by imprisonment of not less
than six (6) years and one (1) day but not more than eight (8) years, and
a fine of at least One Million (P1,000,000.00) but not more than Twenty
Million (P20,000,000.00).

For reasons so stated, we deny the Motion for Reconsideration.

G.R. No. 84818 December 18, 1989

PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner,

vs.
JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS
COMMISSION, respondents.

Rilloraza, Africa, De Ocampo & Africa for petitioner.

Victor de la Serna for respondent Alcuaz.

REGALADO, J.:

This case is posed as one of first impression in the sense that it involves the public utility services of
the petitioner Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is
the only one rendering such services in the Philippines.

The petition before us seeks to annul and set aside an Order 1 issued by respondent Commissioner
Jose Luis Alcuaz of the National Telecommunications Commission (hereafter, NTC), dated
September 2, 1988, which directs the provisional reduction of the rates which may be charged by
petitioner for certain specified lines of its services by fifteen percent (15%) with the reservation to
make further reductions later, for being violative of the constitutional prohibition against undue
delegation of legislative power and a denial of procedural, as well as substantive, due process of
law.

The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic Act
No. 5514, PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in
the Philippines, at such places as the grantee may select, station or stations and associated
equipment and facilities for international satellite communications." Under this franchise, it was
likewise granted the authority to "construct and operate such ground facilities as needed to deliver
telecommunications services from the communications satellite system and ground terminal or
terminals."

Pursuant to said franchise, petitioner puts on record that it undertook the following activities and
established the following installations:

56
 1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal.

2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I
provided direct satellite communication links with the Pacific Ocean Region (the
United States, Australia, Canada, Hawaii, Guam, Korea, Thailand, China [PROC],
New Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite.

3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established.
Pinugay II provided links with the Indian Ocean Region (major cities in Europe,
Middle East, Africa, and other Asia Pacific countries operating within the region) thru
the Indian Ocean INTELSAT satellite.

4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to
temporarily assume the functions of Pinugay I and then Pinugay II while they were
being refurbished. Pinugay III now serves as spare or reserved antenna for possible
contingencies.

5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark

Air Field, Pampanga as a television receive-only earth station which provides the
U.S. Military bases with a 24-hour television service.

6. In 1989, petitioner completed the installation of a third standard "A" earth station
(Pinugay IV) to take over the links in Pinugay I due to obsolescence. 3

By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the
Philippines in the Agreement and the Operating Agreement relating to the International
Telecommunications Satellite Organization (INTELSAT) of 115 member nations, as well as in the
Convention and the Operating Agreement of the International Maritime Satellite Organization
(INMARSAT) of 53 member nations, which two global commercial telecommunications satellite
corporations were collectively established by various states in line with the principles set forth in
Resolution 1721 (XVI) of the General Assembly of the United Nations.

Since 1968, the petitioner has been leasing its satellite circuits to:

1. Philippine Long Distance Telephone Company;

2. Philippine Global Communications, Inc.;

3. Eastern Telecommunications Phils., Inc.;

4. Globe Mackay Cable and Radio Corp. ITT; and

5. Capitol Wireless, Inc.

or their predecessors-in-interest. The satellite services thus provided by petitioner enable said
international carriers to serve the public with indispensable communication services, such as
overseas telephone, telex, facsimile, telegrams, high speed data, live television in full color, and
television standard conversion from European to American or vice versa.

Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then
Public Service Commission, now respondent NTC. However, pursuant to Executive Order No. 196

57
issued on June 17, 1987, petitioner was placed under the jurisdiction, control and regulation of
respondent NTC, including all its facilities and services and the fixing of rates. Implementing said
Executive Order No. 196, respondents required petitioner to apply for the requisite certificate of
public convenience and necessity covering its facilities and the services it renders, as well as the
corresponding authority to charge rates therefor.

Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an
application 4 for authority to continue operating and maintaining the same facilities it has been
continuously operating and maintaining since 1967, to continue providing the international satellite
communications services it has likewise been providing since 1967, and to charge the current rates
applied for in rendering such services. Pending hearing, it also applied for a provisional authority so
that it can continue to operate and maintain the above mentioned facilities, provide the services and
charge therefor the aforesaid rates therein applied for.

On September 16, 1987, petitioner was granted a provisional authority to continue operating its
existing facilities, to render the services it was then offering, and to charge the rates it was then
charging. This authority was valid for six (6) months from the date of said order. 5 When said
provisional authority expired on March 17, 1988, it was extended for another six (6) months, or up to
September 16, 1988.

The NTC order now in controversy had further extended the provisional authority of the petitioner for
another six (6) months, counted from September 16, 1988, but it directed the petitioner to charge
modified reduced rates through a reduction of fifteen percent (15%) on the present authorized rates.
Respondent Commissioner ordered said reduction on the following ground:

The Commission in its on-going review of present service rates takes note that after
an initial evaluation by the Rates Regulation Division of the Common Carriers
Authorization Department of the financial statements of applicant, there is merit in a
REDUCTION in some of applicant's rates, subject to further reductions, should the
Commission finds (sic) in its further evaluation that more reduction should be
effected either on the basis of a provisional authorization or in the final consideration
of the case. 6

PHILCOMSAT assails the above-quoted order for the following reasons:

1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for
public service communications does not provide the necessary standards constitutionally required,
hence there is an undue delegation of legislative power, particularly the adjudicatory powers of NTC;

2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the
same was exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned
order violates procedural due process for having been issued without prior notice and hearing; and
(b) the rate reduction it imposes is unjust, unreasonable and confiscatory, thus constitutive of a
violation of substantive due process.

I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the
creation of respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196,
placing petitioner under the jurisdiction of respondent NTC, can it be inferred that respondent NTC is
guided by any standard in the exercise of its rate-fixing and adjudicatory powers. While petitioner in
its petition-in-chief raised the issue of undue delegation of legislative power, it subsequently clarified
its said submission to mean that the order mandating a reduction of certain rates is undue delegation

58
not of legislative but of quasi-judicial power to respondent NTC, the exercise of which allegedly
requires an express conferment by the legislative body.

Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive

Orders Nos. 546 and 196 on the ground that the same do not fix a standard for the exercise of the
power therein conferred.

We hold otherwise.

Fundamental is the rule that delegation of legislative power may be sustained only upon the ground
that some standard for its exercise is provided and that the legislature in making the delegation has
prescribed the manner of the exercise of the delegated power. Therefore, when the administrative
agency concerned, respondent NTC in this case, establishes a rate, its act must both be non-
confiscatory and must have been established in the manner prescribed by the legislature; otherwise,
in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a
delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the
guidance of the administrative authority is that the rate be reasonable and just. However, it has been
held that even in the absence of an express requirement as to reasonableness, this standard may
be implied. 7

It becomes important then to ascertain the nature of the power delegated to respondent NTC and
the manner required by the statute for the lawful exercise thereof.

Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to
determine and prescribe rates pertinent to the operation of public service communications which
necessarily include the power to promulgate rules and regulations in connection therewith. And,
under Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the
requirements of public safety, public interest and reasonable feasibility of maintaining effective
competition of private entities in communications and broadcasting facilities. Likewise, in Section
6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications
with control and supervision over respondent NTC, it is specifically provided that the national
economic viability of the entire network or components of the communications systems
contemplated therein should be maintained at reasonable rates. We need not go into an in-depth
analysis of the pertinent provisions of the law in order to conclude that respondent NTC, in the
exercise of its rate-fixing power, is limited by the requirements of public safety, public interest,
reasonable feasibility and reasonable rates, which conjointly more than satisfy the requirements of a
valid delegation of legislative power.

II. On another tack, petitioner submits that the questioned order violates procedural due process
because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing.
Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral
evaluation, but had petitioner been given an opportunity to present its side before the order in
question was issued, the confiscatory nature of the rate reduction and the consequent deterioration
of the public service could have been shown and demonstrated to respondents. Petitioner argues
that the function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not
quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a
violation of due process.

Respondents admit that the application of a policy like the fixing of rates as exercised by
administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the
administrative agency is legislative, notice and hearing are not required, but where an order applies
to a named person, as in the instant case, the function involved is adjudicatory. 8 Nonetheless, they

59
insist that under the facts obtaining the order in question need not be preceded by a hearing, not
because it was issued pursuant to respondent NTC's legislative function but because the assailed
order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's
application for a certificate of public convenience; and that petitioner is not the only primary source of
data or information since respondent is currently engaged in a continuing review of the rates
charged.

We find merit in petitioner's contention.

In Vigan Electric Light Co., Inc. vs. Public Service Commission,9 we made a categorical classification
as to when the rate-filing power of administrative bodies is quasi-judicial and when it is legislative,
thus:

Moreover, although the rule-making power and even the power to fix rates- when
such rules and/or rates are meant to apply to all enterprises of a given kind
throughout the Philippines-may partake of a legislative character, such is not the
nature of the order complained of. Indeed, the same applies exclusively to petitioner
herein. What is more, it is predicated upon the finding of fact-based upon a report
submitted by the General Auditing Office-that petitioner is making a profit of more
than 12% of its invested capital, which is denied by petitioner. Obviously, the latter is
entitled to cross-examine the maker of said report, and to introduce evidence to
disprove the contents thereof and/or explain or complement the same, as well as to
refute the conclusion drawn therefrom by the respondent. In other words, in making
said finding of fact, respondent performed a function partaking of a quasi-judicial
character, the valid exercise of which demands previous notice and hearing.

This rule was further explained in the subsequent case of The Central Bank of the Philippines vs.
Cloribel, et al. 10 to wit:

It is also clear from the authorities that where the function of the administrative body
is legislative, notice of hearing is not required by due process of law (See
Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the
nature of the administrative agency is essentially legislative, the requirements of
notice and hearing are not necessary. The validity of a rule of future action which
affects a group, if vested rights of liberty or property are not involved, is not
determined according to the same rules which apply in the case of the direct
application of a policy to a specific individual) ... It is said in 73 C.J.S. Public
Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from
statute, the necessity of notice and hearing in an administrative proceeding depends
on the character of the proceeding and the circumstances involved. In so far as
generalization is possible in view of the great variety of administrative proceedings, it
may be stated as a general rule that notice and hearing are not essential to the
validity of administrative action where the administrative body acts in the exercise of
executive, administrative, or legislative functions; but where a public administrative
body acts in a judicial or quasi-judicial matter, and its acts are particular and
immediate rather than general and prospective, the person whose rights or property
may be affected by the action is entitled to notice and hearing. 11

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of
a quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner
and to no other. Further, it is premised on a finding of fact, although patently superficial, that there is
merit in a reduction of some of the rates charged- based on an initial evaluation of petitioner's

60
financial statements-without affording petitioner the benefit of an explanation as to what particular
aspect or aspects of the financial statements warranted a corresponding rate reduction. No
rationalization was offered nor were the attending contingencies, if any, discussed, which prompted
respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-fetched to
assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its
business requirements. The rates it charges result from an exhaustive and detailed study it conducts
of the multi-faceted intricacies attendant to a public service undertaking of such nature and
magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an
immediate reduction in its rates would adversely affect its operations and the quality of its service to
the public considering the maintenance requirements, the projects it still has to undertake and the
financial outlay involved. Notably, petitioner was not even afforded the opportunity to cross-examine
the inspector who issued the report on which respondent NTC based its questioned order.

At any rate, there remains the categorical admission made by respondent NTC that the questioned
order was issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing
are not necessary since the assailed order is merely incidental to the entire proceedings and,
therefore, temporary in nature. This postulate is bereft of merit.

While respondents may fix a temporary rate pending final determination of the application of
petitioner, such rate-fixing order, temporary though it may be, is not exempt from the statutory
procedural requirements of notice and hearing, as well as the requirement of reasonableness.
Assuming that such power is vested in NTC, it may not exercise the same in an arbitrary and
confiscatory manner. Categorizing such an order as temporary in nature does not perforce entail the
applicability of a different rule of statutory procedure than would otherwise be applied to any other
order on the same matter unless otherwise provided by the applicable law. In the case at bar, the
applicable statutory provision is Section 16(c) of the Public Service Act which provides:

Section 16. Proceedings of the Commission, upon notice and hearing the
Commission shall have power, upon proper notice and hearing in accordance with
the rules and provisions of this Act, subject to the limitations and exceptions
mentioned and saving provisions to the contrary:

xxx xxx xxx

(c) To fix and determine individual or joint rates, ... which shall be imposed, observed
and followed thereafter by any public service; ...

There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there
being no limiting, excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and
196.

It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without
first giving petitioner a hearing, whether the order be temporary or permanent, and it is immaterial
whether the same is made upon a complaint, a summary investigation, or upon the commission's
own motion as in the present case. That such a hearing is required is evident in respondents' order
of September 16, 1987 in NTC Case No. 87-94 which granted PHILCOMSAT a provisional authority
"to continue operating its existing facilities, to render the services it presently offers, and to charge
the rates as reduced by them "under the condition that "(s)ubject to hearing and the final
consideration of the merit of this application, the Commission may modify, revise or amend the rates
..." 12

61
While it may be true that for purposes of rate-fixing respondents may have other sources of
information or data, still, since a hearing is essential, respondent NTC should act solely on the basis
of the evidence before it and not on knowledge or information otherwise acquired by it but which is
not offered in evidence or, even if so adduced, petitioner was given no opportunity to controvert.

Again, the order requires the new reduced rates to be made effective on a specified date. It
becomes a final legislative act as to the period during which it has to remain in force pending the
final determination of the case. 13An order of respondent NTC prescribing reduced rates, even for a
temporary period, could be unjust, unreasonable or even confiscatory, especially if the rates are
unreasonably low, since the utility permanently loses its just revenue during the prescribed period. In
fact, such order is in effect final insofar as the revenue during the period covered by the order is
concerned. Upon a showing, therefore, that the order requiring a reduced rate is confiscatory, and
will unduly deprive petitioner of a reasonable return upon its property, a declaration of its nullity
becomes inductible, which brings us to the issue on substantive due process.

III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually
result in a cessation of its operations and eventual closure of business. On the other hand,
respondents assert that since petitioner is operating its communications satellite facilities through a
legislative franchise, as such grantee it has no vested right therein. What it has is merely a privilege
or license which may be revoked at will by the State at any time without necessarily violating any
vested property right of herein petitioner. While petitioner concedes this thesis of respondent, it
counters that the withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary,
but it must be fair and reasonable.

There is no question that petitioner is a mere grantee of a legislative franchise which is subject to
amendment, alteration, or repeal by Congress when the common good so requires. 14 Apparently,
therefore, such grant cannot be unilaterally revoked absent a showing that the termination of the
operation of said utility is required by the common good.

The rule is that the power of the State to regulate the conduct and business of public utilities is
limited by the consideration that it is not the owner of the property of the utility, or clothed with the
general power of management incident to ownership, since the private right of ownership to such
property remains and is not to be destroyed by the regulatory power. The power to regulate is not
the power to destroy useful and harmless enterprises, but is the power to protect, foster, promote,
preserve, and control with due regard for the interest, first and foremost, of the public, then of the
utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of
private property or constitutes an arbitrary or unreasonable infringement of property rights is void,
because it is repugnant to the constitutional guaranties of due process and equal protection of the
laws. 15

Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates
charged by public utilities should be subject always to the requirement that the rates so fixed shall be
reasonable and just. A commission has no power to fix rates which are unreasonable or to regulate
them arbitrarily. This basic requirement of reasonableness comprehends such rates which must not
be so low as to be confiscatory, or too high as to be oppressive. 16

What is a just and reasonable rate is not a question of formula but of sound business judgment
based upon the evidence 17 it is a question of fact calling for the exercise of discretion, good sense,
and a fair, enlightened and independent judgment. 18 In determining whether a rate is confiscatory, it
is essential also to consider the given situation, requirements and opportunities of the utility. A
method often employed in determining reasonableness is the fair return upon the value of the
property to the public utility. Competition is also a very important factor in determining the

62
reasonableness of rates since a carrier is allowed to make such rates as are necessary to meet
competition. 19

A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based
on the initial evaluation made on the financial statements of petitioner, contrary to respondent NTC's
allegation that it has several other sources of information without, however, divulging such sources.
Furthermore, it did not as much as make an attempt to elaborate on how it arrived at the prescribed
rates. It just perfunctorily declared that based on the financial statements, there is merit for a rate
reduction without any elucidation on what implications and conclusions were necessarily inferred by
it from said statements. Nor did it deign to explain how the data reflected in the financial statements
influenced its decision to impose a rate reduction.

On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to
the public service, should the order of respondent NTC turn out to be unreasonable and improvident.
The business in which petitioner is engaged is unique in that its machinery and equipment have
always to be taken in relation to the equipment on the other end of the transmission arrangement.
Any lack, aging, acquisition, rehabilitation, or refurbishment of machinery and equipment necessarily
entails a major adjustment or innovation on the business of petitioner. As pointed out by petitioner,
any change in the sending end abroad has to be matched with the corresponding change in the
receiving end in the Philippines. Conversely, any in the receiving end abroad has to be matched with
the corresponding change in the sending end in the Philippines. An inability on the part of petitioner
to meet the variegations demanded be technology could result in a deterioration or total failure of the
service of satellite communications.

At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and

renewing its machinery and equipment in order to keep up with the continuing charges of the times
and to maintain its facilities at a competitive level with the technological advances abroad. There
projected undertakings were formulated on the premise that rates are maintained at their present or
at reasonable levels. Hence, an undue reduction thereof may practically lead to a cessation of its
business. While we concede the primacy of the public interest in an adequate and efficient service,
the same is not necessarily to be equated with reduced rates. Reasonableness in the rates assumes
that the same is fair to both the public utility and the consumer.

Consequently, we hold that the challenged order, particularly on the issue of rates provided therein,
being violative of the due process clause is void and should be nullified. Respondents should now
proceed, as they should heretofore have done, with the hearing and determination of petitioner's
pending application for a certificate of public convenience and necessity and in which proceeding the
subject of rates involved in the present controversy, as well as other matter involved in said
application, be duly adjudicated with reasonable dispatch and with due observance of our
pronouncements herein.

WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2,
1988, in NTC Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under
our resolution of September 13, 1988, as specifically directed against the aforesaid order of
respondents on the matter of existing rates on petitioner's present authorized services, is hereby
made permanent.

ANG TIBAY, represented by TORIBIO TEODORO, manager and proprietor, and NATIONAL
WORKERS’ BROTHERHOOD, Petitioners, v. THE COURT OF INDUSTRIAL RELATIONS and
NATIONAL LABOR UNION, INC., Respondents.

Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations.

63
 Antonio D. Paguia; for National Labor Union.

Claro M. Recto; for petitioner "Ang Tibay."

Jose M. Casal; for National Workers’ Brotherhood.

SYLLABUS

1. COURT OF INDUSTRIAL RELATIONS; POWER. — The nature of the Court of Industrial Relations and of its
power is extensively discussed in the decision.

2. ID.; ID.; TECHNICAL RULES OF PROCEDURE; DUE PROCESS OF LAW. — The Court of Industrial Relations
is not narrowly constrained by technical rules of procedure, and Commonwealth Act No. 103 requires it to
act according to justice and equity and substantial merits of the case, without regard to technicalities or
legal evidence but may inform its mind in such manner as it may deem just and equitable (Goseco v. Court
of Industrial Relations Et. Al., G. R. No. 46673). The fact, however, that the Court of Industrial Relations
may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in
justiciable cases coming before it, entirely ignore or disregard the fundamental and essential requirements
of due process in trials and investigations of an administrative character.

3. ID.; ID.; ID.; ID.; CARDINAL PRIMARY RIGHTS. — There are cardinal primary rights which must be
respected even in proceedings of this character. The first of these rights is the right to a hearing, which
includes the right of the party interested or affected to present his own case and submit evidence in support
thereof. Not only must the party be given an opportunity to present his case and to adduce evidence tending
to establish the rights which he asserts but the tribunal must consider the evidence presented. While the
duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be
disregarded, namely, that of having something to support its decision. Not only must there be some
evidence to support a finding or conclusion, but the evidence must be substantial. The decision must be
rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the
parties affected. The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. The Court of Industrial Relations should, in all controvercial questions,
render its decision in such a manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the
authority conferred upon it.

4. ID.; ID.; ID.; ID.; ID.; CASE AT BAR; NEW TRIAL GRANTED. — In the light of the foregoing fundamental
principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay
and the National Workers’ Brotherhood (appendix A), the record is barren and does not satisfy the thirst for
a factual basis upon which to predicate, in a rational way, a conclusion of law. This result, however, does not
now preclude the concession of a new trial prayed for by the respondent National Labor Union, Inc. The
interest of justice would be better served if the movant is given opportunity to present at the hearing the
documents referred to in his motion and such other evidence as may be relevant to the main issue involved.
The legislation which created the Court of Industrial Relations and under which it acts is new. The failure to
grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the
result. Accordingly, the motion for a new trial should be, and the same is hereby, granted, and the entire
record of this’ case shall be remanded to the Court of Industrial Relations, with instruction that it re-open
the case, receive all such evidence as may be relevant, and otherwise proceed in accordance with the
requirements set forth in the decision.

DECISION

LAUREL, J.:

The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has
filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the
following legal conclusions of the majority opinion of this Court:jgc:chanrob les.co m.ph

64
"1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para
una determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que llega el plazo
fijado para el pago de los salarios segun costumbre en la localidad o cuando se termine la obra;

"2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con
ella, sin tiempo fijo, y que se han visto obligados a cesar en sus trabajos por haberse declarado paro forzoso
en la fabrica en la cual trabajan, dejan de ser empleados u obreros de la misma;

"3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus obreros sin tiempo
fijo de duracion y sin ser para una obra determinada y que se niega a readmitir a dichos obreros que
cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta ni incurre en la sancion
penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que
dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado de ser
empleados suyos por terminacion del contrato en virtud del paro." cralaw vi rtua1aw l ib rary

The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgment
rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for
a new trial, and avers:jgc:chan robles. com.ph

"1. That Toribio Teodoro’s claim that on September 26,1938, there was shortage of leather soles in ANG
TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is
entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native
dealers in leather.

"2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme adopted to
systematically discharge all the members of the National Labor Union, Inc., from work.

"3. That Toribio Teodoro’s letter to the Philippine Army dated September 29, 1938, (re supposed delay of
leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite
the breach of his CONTRACT with the Philippine Army.

"4. That the National Workers’ Brotherhood of ANG TIBAY is a company or employer union dominated by
Toribio Teodoro, the existence and functions of which are illegal. (281 U. S., 548, petitioner’s printed
memorandum, p. 25.)

"5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective
representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.)

"6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and
continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the
salutary provisions of a modern labor legislation of American origin where industrial peace has always been
the rule.

"7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the
National Labor Union, Inc., and unjustly favoring the National Workers’ Brotherhood.

"8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of
due diligence they could not be expected to have obtained them and offered as evidence in the Court of
Industrial Relations.

"9. That the attached documents and exhibits are of such far-reaching importance and effect that their
admission would necessarily mean the modification and reversal of the judgment rendered herein." cralaw virtua1aw l ibra ry

The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent
Court of Industrial Relations and to the motion for new trial of the respondent National Labor Union, Inc.

In view of the conclusion reached by us and to be herein- after stated with reference to the motion for a
new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass
upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for
new trial of the respondent labor union. Before doing this, however, we deem it necessary, in the interest of
orderly procedure in cases of this nature, to make several observations regarding the nature of the powers
of the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the

65
trial of cases brought before it. We have re-examined the entire record of the proceedings had before the
Court of Industrial Relations in this case, and we have found no substantial evidence to indicate that the
exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken
contains what transpired during the hearing and is more of a record of contradictory and conflicting
statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that
these statements and expressions of views of counsel have no evidentiary value.

The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its
creation (Commonwealth Act No. 103). It is more an administrative board than a part of the integrated
judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a
court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only
cases that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will
appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises judicial
or quasijudicial functions in the determination of disputes between employers and employees but its
functions are far more comprehensive and extensive. It has jurisdiction over the entire Philippines, to
consider, investigate, decide, and settle any question, matter controversy or dispute arising between, and/or
affecting, employers and employees or laborers, and landlords and tenants or farm-laborers, and regulate
the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No.
103 (section 1). It shall take cognizance for purposes of prevention, arbitration, decision and settlement, of
any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as
regards wageshares or compensation, hours of labor or conditions of tenancy or employment, between
employers and employees or laborers and between landlords and tenants or farm-laborers, provided that
the number of employees, laborers or tenants or farm-laborers involved exceeds thirty, and such industrial
or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to
the controversy and certified by the Secretary of Labor as existing and proper to be death with by the Court
for the sake of public interest. (Section A, ibid.) It shall, before hearing the dispute and in the course of such
hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement.
(Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and
study all pertinent facts related to the industry concerned or to the industries established in a designated
locality, with a view to determining the necessity and fairness of fixing and adopting for such industry or
locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the
"inquilinos" or tenants or lessees to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary
arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or
recur to the more effective system of official investigation and compulsory arbitration in order to determine
specific controversies between labor and capital in industry and in agriculture. There is in reality here a
mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of
governmental powers.

In the case of Goseco v. Court of Industrial Relations Et. Al., G. R. No. 46673, promulgated September 13,
1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by
technical rules of procedure, and the Act requires it to "act according to justice and equity and substantial
merits of the case, without regard to technicalities or legal forms and shall not be bound by any technical
rules of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section
20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by
the parties to the industrial or agricultural dispute, but may include in the award, order or decision any
matter or determination which may be deemed necessary or expedient for the purpose of settling the
dispute or of preventing further industrial or agricultural disputes. (Section 13, ibid.) And in the light of this
legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by
this Court to carry into effect the avowed legislative purpose. The fact, however, that the Court of Industrial
Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it
can, in justiciable cases coming before it, entirely ignore or disregard the fundamental and essential
requirements of due Process in trials and investigations of an administrative character. There are cardinal
primary rights which must be respected even in proceedings of this character: chanrob1e s virtual 1aw lib rary

(1) The first of these rights is the right to a hearing which includes the right of the party interested or
affected to present his own case and submit evidence in support thereof. In the language of Chief Justice
Hughes, in Morgan v. U. S., 304 U. S. 1, 58 S. Ct. 773, 999, 82 Law. ed 1129, "the liberty and property of
the citizen shall be protected by the rudimentary requirements of fair play." cralaw virtua 1aw lib rary

(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice
Hughes in Morgan v. U. S. 298 U. S. 468, 56 S. Ct. 906, 80 Law. ed. 1288.) In the language of this Court in

66
Edwards v. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part
of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the
evidence is presented can thrust it aside without notice or consideration." cralaw vi rtua1aw l ibra ry

(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity
which cannot be disregarded, namely, that of having something to support its decision. A decision with
absolutely nothing to support it is a nullity, a place when directly attached." (Edwards v. McCoy, supra.) This
principle emanates from the more fundamental principle that the genius of constitutional government is
contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power.

(4) Not only must there be some evidence to support a finding or conclusion (City of Manila v. Agustin, G. R.
No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial."
(Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U. S. 142, 147, 57 S.
Ct. 648, 650, 81 Law ed 965.) Substantial evidence is more than a mere scintilla It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." cralaw virtua1a w libra ry

(Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor
Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-stillwater Knitting Co. v. National
Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that ’the rules of evidence
prevailing in courts of law and equity shall not be controlling.’ The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of technical rules so that the mere admission
of matter which would be deemed incompetent in judicial proceedings would not invalidate the
administrative order. (Interstate Commerce Commission v. Baird, 194 U. S. 25, 44, 24 S. Ct. 563, 568, 48
Law. ed. 860; Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 93, 33 S. Ct.
185, 187, 57 Law. ed. 431; United States v. Abilene & Southern Ry. Co., 265 U. S. 274, 288, 44 S. Ct. 565,
569, 68 Law. ed. lola; Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 442, 50 S. Ct. 220, 225, 74
Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does not go so far as
to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or
rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board,
59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the
record and disclosed to the parties affected. (Interstate Commence Commission v. L. & N. R. Co., 227 U. S.
88, 33 S. Ct. 185, 57 Law. ed. 431. )Only by confining the administrative tribunal to the evidence disclosed
to the parties, can the latter be protected in their right to know and meet the case against them. It should
not, however, detract from their duty actively to see that the law is enforced, and for that purpose, to use
the authorized legal methods of securing evidence and informing itself of facts material and relevant to the
controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts
in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.)
The Court of Industrial Relations may refer any industrial or agricultural dispute of any matter under its
consideration or advisement to a local board of inquiry, a provincial fiscal, a justice of the peace or any
public official in any part of the Philippines for investigation, report and recommendation, and may delegate
to such board or public official such powers and functions as the said Court of Industrial Relations may deem
necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers (Section
10, ibid.)

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in
arriving at a decision. It may be that the volume of work is such that it is literally impossible for the titular
heads of the Court of Industrial Relations personally to decide all controversies coming before them. In the
United States the difficulty is solved with the enactment of statutory authority authorizing examiners or
other subordinates to render final decision, with right to appeal to board or commission, but in our case
there is no such statutory authority.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the vario issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.

In the light of the foregoing fundamental principles, it is sufficient to observe here that, except as to the
alleged agreement between the Ang Tibay and the National Workers’ Brotherhood (appendix A), the record
is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a rational way, a
conclusion of law.

67
This result, however, does not now preclude the concession of a new trial prayed for by the respondent
National Labor Union, Inc. In the portion of the petition hereinabove quoted of the National Labor Union,
Inc., it is alleged that "the supposed lack of leather material claimed by Toribio Teodoro was but a scheme
adopted to systematically discharge all the members of the National Labor Union, Inc., from work" and this
averment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the
Books of Accounts of native dealers in leather" ; that "the National Workers’ Brotherhood Union of Ang Tibay
is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are
illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his
substantial averments "are so inaccessible to the respondents that even with the exercise of due diligence
they could not be expected to have obtained them and offered as evidence in the Court of Industrial
Relations", and that the documents attached to the petition "are of such far reaching importance and effect
that their admission would necessarily mean the modification and reversal of the judgment rendered
therein." We have considered the reply of Ang Tibay and its arguments against the petition. By and large,
after considerable discussion, we have come to the conclusion that the interest of justice would be better
served if the movant is given opportunity to present at the hearing the documents referred to in his motion
and such other evidence as may be relevant to the main issue involved. The legislation which created the
Court of Industrial Relations and under which it acts is new. The failure to grasp the fundamental issue
involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion
for a new trial should be, and the same is hereby granted, and the entire record of this case shall be
remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such
evidence as may be relevant, and otherwise proceed in accordance with the requirements set forth
hereinabove. So ordered.

G.R. No. 99327 May 27, 1993

ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS, S. J., DEAN CYNTHIA

ROXAS-DEL CASTILLO, JUDGE RUPERTO KAPUNAN, JR., JUSTICE VENICIO ESCOLIN,
FISCAL MIGUEL ALBAR, ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE CLARO
TESORO, RAMON CAGUIOA, and RAMON ERENETA. petitioners,
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-Makati, Br. 134, ZOSIMO
MENDOZA, JR. ERNEST MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO SABBAN,
DALMACIO LIM JR., MANUEL ESCONA and JUDE FERNANDEZ, respondents.

Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenes for petitioners.

Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner Cynthia Roxas-del Castillo.

Fabregas, Calida & Remollo for private respondents.

ROMERO, J.:

In 1975, the Court was confronted with a mandamus proceeding to compel the Faculty Admission
Committee of the Loyola School of Theology, a religious seminary which has a working arrangement
with the Ateneo de Manila University regarding accreditation of common students, to allow petitioner
who had taken some courses therein for credit during summer, to continue her studies.1 Squarely
meeting the issue, we dismissed the petition on the ground that students in the position of petitioner
possess, not a right, but a privilege, to be admitted to the institution. Not having satisfied the prime
and indispensable requisite of a mandamus proceeding since there is no duty, much less a clear
duty, on the part of the respondent to admit the petitioner, the petition did not prosper.

68
In support of its decision, the Court invoked academic freedom of institutions of higher learning, as
recognized by the Constitution, the concept encompassing the right of a school to choose its
students.

Eighteen (18) years later, the right of a University to refuse admittance to its students, this time in
Ateneo de Manila University proper, is again challenged.

Whereas, in the Garcia case referred to in the opening paragraph, the individual concerned was not
a regular student, the respondents in the case at bar, having been previously enrolled in the
University, seek re-admission. Moreover, in the earlier case, the petitioner was refused admittance,
not on such considerations as personality traits and character orientation, or even inability to meet
the institution's academic or intellectual standards, but because of her behavior in the classroom.
The school pointedly informed her that ". . . it would seem to be in your best interest to work with a
Faculty that is more compatible with your orientations."

On the other hand, students who are now being refused admission into petitioner University have
been found guilty of violating Rule No. 3 of the Ateneo Law School Rules on Discipline which
prohibits participation in hazing activities. The case attracted much publicity due to the death of one
of the neophytes and serious physical injuries inflicted on another.

Herein lies an opportunity for the Court to add another dimension to the concept of academic
freedom of institutions of higher learning, this time a case fraught with social and emotional
overtones.

The facts which gave rise to this case which is far from novel, are as follows:

As a requisite to membership, the Aquila Legis, a fraternity organized in the Ateneo Law School,
held its initiation rites on February 8, 9 and 10, 1991, for students interested in joining its ranks. As a
result of such initiation rites, Leonardo "Lennie" H. Villa, a first year student of petitioner university,
died of serious physical injuries at Chinese General Hospital on February 10, 1991. He was not the
lone victim, though, for another freshman by the name of Bienvenido Marquez was also hospitalized
at the Capitol Medical Center for acute renal failure occasioned by the serious physical injuries
inflicted upon him on the same occasion.

In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo created a Joint
Administration-Faculty-Student Investigating Committee2 which was tasked to investigate and submit
a report within 72 hours on the circumstances surrounding the death of Lennie Villa. Said notice also
required respondent students to submit their written statements within twenty-four (24) hours from
receipt. Although respondent students received a copy of the written notice, they failed to file a reply.
In the meantime, they were placed on preventive suspension.3 Through their respective counsels,
they requested copies of the charges and pertinent documents or affidavits.

In a notice dated February 14, 1991, the Joint Administration-Faculty-Student Investigating

Committee, after receiving the written statements and hearing the testimonies of several witness,
found a prima facie case against respondent students for violation of Rule 3 of the Law School
Catalogue entitled "Discipline."4

Respondent students were then required to file their written answers to the formal charge on or
before February 18, 1991; otherwise, they would be deemed to have waived their right to present
their defenses.

69
On February 20, 1991, petitioner Dean created a Disciplinary Board composed of petitioners Judge
Ruperto Kapunan, Justice Venicio Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and Atty.
Ferdinand Casis, to hear the charges against respondent students.

In a letter dated February 20, 1991, respondent students were informed that they had violated Rule
No. 3 of the Rules on Discipline contained in the Law School Catalogue. Said letter also states: "The
complaint/charge against you arose from initiations held on February 8-10, 1991. The evidence
against you consist of testimonies of students, showing your participation in acts prohibited by the
School regulations." Finally, it ordered respondent students to file their written answers to the above
charge on or before February 22 1991, otherwise they would be deemed to have waived their
defenses.5

In a motion dated February 21, 1991, respondent students, through counsel, requested that the
investigation against them be held in abeyance, pending action on their request for copies of the
evidence against them.6

Respondent students were then directed by the Board to appear before it at a hearing on February
28, 1991 to clarify their answer with regard to the charges filed by the investigating committee for
violation of Rule No. 3. However, in a letter to a petitioners dated February 27, 1991, counsel for
respondent students moved to postpone the hearing from February 28, 1991 to March 1, 1991.7

Subsequently, respondent students were directed to appear on March 2, 1991 for clarificatory
questions.8 They were also informed that:

a) The proceedings will be summary in nature in accordance with the rules laid down
in the case of Guzman vs. National University;9

b) Petitioners have no right to cross-examine the affiants-neophytes;

c) Hazing which is not defined in the School catalogue shall be defined in

accordance with the proposed bill of Sen. Jose Lina, Senate Bill No. 3815;

d) The Board will take into consideration the degree of participation of the petitioners
in the alleged hazing incident in imposing the penalty;

e) The Decision of the Board shall be appealable to the President of the University, i.
e., Respondent Joaquin Bernas S. J.

On March 5, 1991, petitioner Bernas wrote Dean Castillo that, "in cases where the Disciplinary
Board is not prepared to impose the penalty of dismissal, I would prefer that the Board leave the
decision on the penalty to the Administration so that this case be decided not just on the Law School
level but also on the University level."10

In a resolution dated March 9, 1991, the Board found respondent students guilty of violating Rule
No. 3 of the Ateneo Law School Rules on Discipline which prohibits participation in hazing activities.
The Board found that respondent students acted as master auxiliaries or "auxies" during the initiation
rites of Aquila Legis, and exercised the "auxies privilege," which allows them to participate in the
physical hazing. Although respondent students claim that they were there to assist and attend to the
needs of the neophytes, actually they were assigned a definite supportive role to play in the
organized activity. Their guilt was heightened by the fact that they made no effort to prevent the
infliction of further physical punishment on the neophytes under their care. The Board considered

70
respondent students part and parcel of the integral process of hazing. In conclusion, the Board
pronounced respondents guilty of hazing, either by active participation or through acquiescence.
However, in view of the lack of unanimity among the members of the Board on the penalty of
dismissal, the Board left the imposition of the penalty to the University Administration.11 Petitioner
Dean del Castillo waived her prerogative to review the decision of the Board and left to the President
of the University the decision of whether to expel respondents or not.

Consequently, in a resolution dated March 10, 1991, petitioner Fr. Joaquin G. Bernas, as President
of the Ateneo de Manila University, accepted the factual findings of the Board, thus: "that as Master
Auxiliaries they exercised the 'auxie's privilege;' that even assuming they did not lay hands on the
neophytes," respondents students are still guilty in accordance with the principle that "where two or
more persons act together in the commission of a crime, whether they act through the physical
volition of one or of all, proceeding severally or collectively, each individual whose will contributes to
the wrongdoing is responsible for the whole." Fr. Bernas, in describing the offense which led to the
death of Leonardo Villa, concluded that the "offense of the respondents can be characterized as
grave and serious, subversive of the goals of Christian education and contrary to civilized behavior."
Accordingly, he imposed the penalty of dismissal on all respondent students.12

In a resolution dated March 18, 1991 and concurred in by petitioner Fr. Bernas,13 the Board excluded
respondent students Abas and Mendoza from the coverage of the resolution of March 10, 1991,
inasmuch as at the time the latter resolution was promulgated, neither had as yet submitted their
case to the Board. Said resolution also set the investigation of the two students on March 21, 1991.

On March 18, 1991, respondent students filed with the Regional Trial Court of Makati, a petition
for certiorari, prohibition and mandamus with prayer for temporary restraining order and preliminary
injunction14 alleging that they were currently enrolled as students for the second semester of school
year 1990-91. Unless a temporary restraining order is issued, they would be prevented from taking
their examinations. The petition principally centered on the alleged lack of due process in their
dismissal.

On the same day, Judge Madayag issued a temporary restraining order the enjoining petitioners
from dismissing respondent students and stopping the former from conducting hearings relative to
the hazing incident.15

Hearings in connection with the issuance of the temporary restraining order were then held. On April
7, 1991, the temporary restraining order were issued on March 18, 1991 lapsed. Consequently, a
day after the expiration of the temporary restraining order, Dean del Castillo created a Special Board
composed of Atty.(s) Jose Claro Tesoro, Ramon Caguioa, and Ramon Ereñeta to investigate the
charges of hazing against respondent students Abas and Mendoza.

Respondent students reacted immediately by filing a Supplemental Petition of certiorari, prohibition

and mandamuswith prayer for a temporary restraining order and preliminary injunction, to include the
aforesaid members of the Special Board, as additional respondents to the original petition.16

Petitioners moved to strike out the Supplement Petition arguing that the creation of the Special
Board was totally unrelated to the original petition which alleged lack of due process in the conduct
of investigations by the Disciplinary Board against respondent students; that a supplemental petition
cannot be admitted without the same being set for hearing and that the supplemental petition for the
issuance of a temporary restraining order will, in effect, extend the previous restraining order beyond
its mandatory 20-day lifetime.17 Acting on the urgent motion to admit the supplemental petition with
prayer for a temporary restraining order, Judge Amin, as pairing judge of respondents Judge
Capulong, granted respondent students' prayer on April 10, 1991.18

71
On May 17, 1991, respondent Judge ordered petitioners to reinstate respondent students.
Simultaneously, the court ordered petitioners to conduct special examinations in lieu of the final
examinations which allegedly the students were not allowed to take, and enjoined them to maintain
the status quo with regard to the cases of Adel Abas and Zosimo Mendoza pending final
determination of the issue of the instant case. Lastly, it directed respondent students to file a bond in
the amount of P50,000.00.19

On the same date, May 17, 1991, the Special Board investigating petitioners Abas and Mendoza
and directed the dropping of their names from its roll of students.20

The following day or on May 21, 1991, respondent judge issued the writ of preliminary injunction
upon posting by respondents of a bond dated May 17, 1991 in the amount of P50,000.00.

Hence, this special civil action of certiorari under Rule 65 with prayer for the issuance of a temporary
restraining order enjoining the enforcement of the May 17, 1991 order of respondent judge.21

In the case at bar, we come to grips with two relevant issues on academic freedom, namely: (1)
whether a school is within its rights in expelling students from its academic community pursuant to its
disciplinary rules and moral standards; and (2) whether or not the penalty imposed by the school
administration is proper under the circumstances.

We grant the petition and reverse the order of respondent judge ordering readmission of respondent
students. Respondent judge committed grave abuse of discretion when he ruled that respondent
students had been denied due process in the investigation of the charges against them.

It is the threshold argument of respondent students that the decision of petitioner Fr. Joaquin
Bernas, S. J., then President of the Ateneo de Manila University, to expel them was arrived at
without affording them their right to procedural due process. We are constrained to disagree as we
find no indication that such right has been violated. On the contrary, respondent students' rights in a
school disciplinary proceeding, as enunciated in the cases of Guzman v. National
University,22 Alcuaz v. PSBA, Q.C. Branch23 and Non v. Dames II24 have been meticulously respected
by petitioners in the various investigative proceedings held before they were expelled.

Corollary to their contention of denials of due process is their argument that it is Ang
Tibay case25 and not the Guzman case which is applicable in the case at bar. Though both cases
essentially deal with the requirements of due process, the Guzman case is more apropos to the
instant case, since the latter deals specifically with the minimum standards to be satisfied in the
imposition of disciplinary sanctions in academic institutions, such as petitioner university herein,
thus:

(1) the students must be informed in writing of the nature and cause of any
accusation against them; (2) that they shall have the right to answer the charges
against them with the assistance of counsel, if desired: (3) they shall be informed of
the evidence against them (4) they shall have the right to adduce evidence in their
own behalf; and (5) the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear and decide the
case.26

It cannot seriously be asserted that the above requirements were not met. When, in view of the
death of Leonardo Villa, petitioner Cynthia del Castillo, as Dean of the Ateneo Law School, notified
and required respondent students on February 11, 1991 to submit within twenty-four hours their
written statement on the incident,27 the records show that instead of filing a reply, respondent

72
students requested through their counsel, copies of the charges.28 While of the students mentioned in
the February 11, 1991 notice duly submitted written statements, the others failed to do so. Thus, the
latter were granted an extension of up to February 18, 1991 to file their statements.29

Indubitably, the nature and cause of the accusation were adequately spelled out in petitioners'
notices dated February 14 and 20, 1991.30 It is to be noted that the February 20, 1991 letter which
quoted Rule No. 3 of its Rules of Discipline as contained in the Ateneo Law School Catalogue was
addressed individually to respondent students. Petitioners' notices/letters dated February 11,
February 14 and 20 clearly show that respondent students were given ample opportunity to adduce
evidence in their behalf and to answer the charges leveled against them.

The requisite assistance of counsel was met when, from the very start of the investigations before
the Joint Administration Faculty-Student Committee, the law firm of Gonzales Batiler and Bilog and
Associates put in its appearance and filed pleadings in behalf of respondent students.

Respondent students may not use the argument that since they were not accorded the opportunity
to see and examine the written statements which became the basis of petitioners' February 14, 1991
order, they were denied procedural due process.31 Granting that they were denied such opportunity,
the same may not be said to detract from the observance of due process, for disciplinary cases
involving students need not necessarily include the right to cross examination. An administrative
proceeding conducted to investigate students' participation in a hazing activity need not be clothed
with the attributes of a judicial proceeding. A closer examination of the March 2, 1991 hearing which
characterized the rules on the investigation as being summary in nature and that respondent
students have no right to examine affiants-neophytes, reveals that this is but a reiteration of our
previous ruling in Alcuaz.32

Respondent students' contention that the investigating committee failed to consider their evidence is
far from the truth because the February 14, 1992 ordered clearly states that it was reached only after
receiving the written statements and hearing the testimonies of several witnesses.33 Similarly, the
Disciplinary Board's resolution dated March 10, 1991 was preceded by a hearing on March 2, 1991
wherein respondent students were summoned to answer clarificatory questions.

With regard to the charge of hazing, respondent students fault petitioners for not explicitly defining
the word "hazing" and allege that there is no proof that they were furnished copies of the 1990-91
Ateneo Law School Catalogue which prohibits hazing. Such flawed sophistry is not worthy of
students who aspire to be future members of the Bar. It cannot be overemphasized that the charge
filed before the Joint Administration-Faculty-Student Investigating Committee and the Disciplinary
Board is not a criminal case requiring proof beyond reasonable doubt but is merely administrative in
character. As such, it is not subject to the rigorous requirements of criminal due process, particularly
with respect to the specification of the charge involved. As we have had occasion to declare in
previous cases a similar nature, due process in disciplinary cases involving students does not entail
proceedings and hearings identical to those prescribed for actions and proceedings in courts of
justice.34 Accordingly, disciplinary charges against a student need not be drawn with the precision of
a criminal information or complaint. Having given prior notice to the students involved that "hazing"
which is not defined in the School Catalogue shall be defined in accordance with Senate Bill No.
3815, the proposed bill on the subject of Sen. Jose Lina, petitioners have said what needs to be
said. We deem this sufficient for purposes of the investigation under scrutiny.

Hazing, as a ground for disciplining a students, to the extent of dismissal or expulsion, finds
its raison d' etre in the increasing frequency of injury, even death, inflicted upon the neophytes by
their insensate "masters." Assuredly, it passes the test of reasonableness and absence of malice on

73
the part of the school authorities. Far from fostering comradeship and esprit d' corps, it has merely
fed upon the cruel and baser instincts of those who aspire to eventual leadership in our country.

Respondent students argue that petitioners are not in a position to file the instant petition under Rule
65 considering that they failed to file a motion for reconsideration first before the trial court, thereby
by passing the latter and the Court of Appeals.35

It is accepted legal doctrine that an exception to the doctrine of exhaustion of remedies is when the
case involves a question of law,36 as in this case, where the issue is whether or not respondent
students have been afforded procedural due process prior to their dismissal from petitioner
university.

Lastly, respondent students argue that we erred in issuing a Temporary Restraining Order since
petitioners do not stand to suffer irreperable damage in the event that private respondents are
allowed to re-enroll. No one can be so myopic as to doubt that the immediate reinstatement of
respondent students who have been investigated and found by the Disciplinary Board to have
violated petitioner university's disciplinary rules and standards will certainly undermine the authority
of the administration of the school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's academic freedom which has been
enshrined in the 1935, 1973 and the present 1987 Constitutions.

At this juncture, it would be meet to recall the essential freedoms subsumed by Justice Felix
Frankfurter in the term "academic freedom" cited in the case of Sweezy v. New Hampshire,37 thus:
(1) who may teach: (2) what may be taught; (3) how it shall be taught; and (4) who may be admitted
to study.

Socrates, the "first of the great moralists of Greece," proud to claim the title "gadfly of the State" has
deservedly earned for himself a respected place in the annals of history as a martyr to the cause of
free intellectual inquiry. To Plato, this great teacher of his was the "best, the most sensible, and the
most sensible, and the most just man of his age." In 399 B.C., he willingly quaffed the goblet of
hemlock as punishment for alleged "corruption" of the youth of Athens. He describes in his own
words how this charge of "corruption," the forerunner of the concept of academic freedom, came
about:

Young men of the richer classes, who have not much to do, come about me of their
own accord: they like to heart the pretenders examined, and they often imitate me,
and examine others themselves; there are plenty of person, as they soon discover,
who think that they know something, but really know little or nothing; and then those
who are examined by them instead of being angry with themselves are angry with
me. This confounded Socrates, they say; this villainous misleader of youth. And then
if somebody asks them, Why, what evil does he practice or teach? they do not know,
and cannot tell; but in order that they may not appear to be at a loss, they repeat the
ready-made charges which are used against all philosophers about teaching things
up in the clouds and under the earth, and having no gods, and making the worse
appear the better cause; for they do not like to confess that their pretense of
knowledge has been detected — which is the truth; and as they are numerous and
ambitious and energetic, and are all in battle array and have persuasive tongues,
they have filled your ears with their loud and inveterate calumnies.38

Since Socrates, numberless individuals of the same heroic mold have similarly defied the stifling
strictures of authority, whether State, Church, or various interest groups, to be able to give free rein

74
to their ideas. Particularly odious were the insidious and blatant attempts at thought control during
the time of the Inquisition until even the Medieval universities, renowned as intellectual centers in
Europe, gradually lost their autonomy.

In time, such noble strivings, gathering libertarian encrustations along the way, were gradually
crystallized in the cluster of freedoms which awaited the champions and martyrs of the dawning
modern age. This was exemplified by the professors of the new German universities in the 16th and
17th centuries such as the Universities of Leiden (1554), Helmstatdt (1574) and Heidelberg (1652).
The movement back to freedom of inquiry gained adherents among the exponents of fundamental
human rights of the 19th and 20th centuries. "Academic freedom", the term as it evolved to describe
the emerging rights related to intellectual liberty, has traditionally been associated with freedom of
thought, speech, expression and the press; in other words, with the right of individuals in university
communities, such as professors, researchers and administrators, to investigate, pursue, discuss
and, in the immortal words of Socrates, "to follow the argument wherever it may lead," free from
internal and external interference or pressure.

But obviously, its optimum impact is best realized where the freedom is exercised judiciously and
does not degenerate into unbridled license. Early cases on this individual aspect of academic
freedom have been stressed the need for assuring to such individuals a measure of independence
through the guarantees of autonomy and security of tenure. The components of this aspect of
academic freedom have been categorized under the areas of: (1) who may teach and (2) how to
teach.

It is to be realized that this individual aspects of academic freedom could have developed only pari
passu with its institutional counterpart. As corporate entities, educational institutions of higher
learning are inherently endowed with the right to establish their policies, academic and otherwise,
unhampered by external controls or pressure. In theFrankfurter formulation, this is articulated in the
areas of: (1) what shall be taught, e.g., the curriculum and (2) who may be admitted to study.

In the Philippines, the Acts which are passed with the change of sovereignty from the Spanish to the
American government, namely, the Philippine Bill of 1902 and the Philippine Autonomy Act of 1916
made no mention of the rights now subsumed under the catch-all term of "academic freedom." This
is most especially true with respect to the institutional aspect of the term. It had to await the drafting
of the Philippine Constitutions to be recognized as deserving of legal protection.

The breakthrough for the concept itself was found in Section 5 of the 1935 Constitution which stated:
"Universities established by the State shall enjoy academic freedom." The only State University at
that time, being the University of the Philippines, the Charter was perceived by some as exhibiting
rank favoritism for the said institution at the expense of the rest.

In attempt to broaden the coverage of the provision, the 1973 Constitution provided in its Section
8(2): "All institutions of higher learning shall enjoy academic freedom." In his interpretation of the
provision, former U.P. President Vicente G. Sinco, who was also a delegate to the 1971
Constitutional Convention, declared that it "definitely grants the right of academic freedom to the
University as an institution as distinguished from the academic freedom of a university professor."39

Has the right been carried over the to the present Constitution? In an attempt to give an explicit
definition with an expanded coverage, the Commissioners of the Constitutional Commission of the
1986 came up with this formulation: "Academic freedom shall be enjoyed by students, by teachers,
and by researchers." After protracted debate and ringing speeches, the final version which was none
too different from the way it was couched in the previous two (2) Constitutions, as found in Article
XIV, Section 5(2) states: "Academic freedom shall be enjoyed in all institutions of higher learning." In

75
anticipation of the question as to whether and what aspects of academic freedom are included
herein, ConCom Commissioner Adolfo S. Azcuna explained: "Since academic freedom is a dynamic
concept, we want to expand the frontiers of freedom, especially in education, therefore, we shall
leave it to the courts to develop further the parameters of academic freedom."40

More to the point, Commissioner Jose Luis Martin C. Gascon asked: "When we speak of the
sentence 'academic freedom shall be enjoyed in all institutions of higher learning,' do we mean that
academic freedom shall be enjoyed by the institution itself?" Azcuna replied: "Not only that, it also
includes . . . . " Gascon finished off the broken thought,— "the faculty and the students." Azcuna
replied: "Yes."

Since Garcia v. Loyola School of Theology,41 we have consistently upheld the salutary proposition
that admission to an institution of higher learning is discretionary upon a school, the same being a
privilege on the part of the student rather than a right. While under the education Act of 1982,
students have a right "to freely choose their field of study, subject to existing curricula and to
continue their course therein up to graduation," such right is subject, as all rights are, to the
established academic and disciplinary standards laid down by the academic institution.42

"For private schools have the right to establish reasonable rules and regulations for the admission,
discipline and promotion of students. This . . . extends as well to parents . . . as parents are under a
social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the
schools."43

Such rules are "incident to the very object of incorporation and indispensable to the successful
management of the college. The rules may include those governing student discipline."44 Going a
step further, the establishment of rules governing university-student relations, particularly those
pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient
operation of the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves as
collectively, the students demanded and plucked for themselves from the ponoply of academic
freedom their own rights encapsulized under the rubric of "right to education" forgetting that, in
Holfeldian terms, they have a concomitant duty, and that is, their duty to learn under the rules laid
down by the school.

Considering that respondent students are proud to claim as their own a Christian school that
includes Theology as part of its curriculum and assidously strives to turn out individuals of
unimpeachable morals and integrity in the mold of the founder of the order of the Society of Jesus,
St. Ignatius of Loyola, and their God-fearing forbears, their barbaric and ruthless acts are the more
reprehensible. It must be borne in mind that universities are established, not merely to develop the
intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the
development, or flowering if you will, of the total man.

In essence, education must ultimately be religious — not in the sense that the founders or charter
members of the institution are sectarian or profess a religious ideology. Rather, a religious
education, as the renowned philosopher Alfred North Whitehead said, is "an education which
inculcates duty and reverence."45 It appears that the particular brand of religious education offered by
the Ateneo de Manila has been lost on the respondent students.

Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila
University as their own a minute longer, for they may foreseeably cast a malevolent influence on the
students currently enrolled, as well as those who come after them.

76
Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The
maintenance of a morally conducive and orderly educational environment will be seriously imperiled
if, under the circumstances of this case, Grace Christian is forced to admit petitioner's children and
to reintegrate them to the student body."46 Thus, the decision of petitioner university to expel them is
but congruent with the gravity of their misdeeds. That there must be such a congruence between the
offense committed and the sanction imposed was stressed in Malabanan v. Ramento.47

Having carefully reviewed the records and the procedure followed by petitioner university, we see no
reason to reverse its decision founded on the following undisputed facts: that on February 8, 9 and
10, 1991, the Aquila Legis Fraternity conducted hazing activities; that respondent students were
present at the hazing as auxiliaries, and that as a result of the hazing, Leonardo Villa died from
serious physical injuries, while Bienvenido Marquez was hospitalized. In light of the vicious acts of
respondent students upon those whom ironically they would claim as "brothers" after the initiation
rites, how can we countenance the imposition of such nominal penalties as reprimand or even
suspension? We, therefore, affirm petitioners' imposition of the penalty of dismissal upon respondent
students. This finds authority and justification in Section 146 of the Manual of Regulations for Private
Schools.48

WHEREFORE, the instant petition is GRANTED; the order of respondent Judge dated May 17, 1991
reinstating respondents students into petitioner university is hereby REVERSED. The resolution of
petitioner Joaquin Bernas S. J., then President of Ateneo de Manila University dated March 1991, is
REINSTATED and the decision of the Special Board DISMISSING respondent students ADEL ABAS
and ZOSIMO MENDOZA dated May 20, 1991 is hereby AFFIRMED.

SOUTHERN HEMISPHERE VS ANTI TERRORISM COUNCIL

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act
No. 9372 (RA 9372), An Act to Secure the State and Protect our People from
Terrorism, otherwise known as the Human Security Act of 2007,[1] signed into law
on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization, and Atty.
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-
Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human
Rights (CTUHR), represented by their respective officers[3] who are also bringing
the action in their capacity as citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan
(BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality,

77
Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP),
Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for
Unity, Recognition and Advancement of Government Employees (COURAGE),
Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers
(ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented
by their respective officers,[4] and joined by concerned citizens and taxpayers
Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister
Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired
Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo,
Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro
Casambre filed a petition for certiorari and prohibition docketed as G.R. No.
178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa
Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church Peoples Response (PCPR), which were represented by their
respective officers[5] who are also bringing action on their own behalf, filed a petition
for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
Defense of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio
Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition
docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional

chapters and organizations mostly based in the Southern Tagalog Region,[7] and
individuals[8] followed suit by filing on September 19, 2007 a petition for certiorari
and prohibition docketed as G.R. No. 179461 that replicates the allegations raised
in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism

Council[9] composed of, at the time of the filing of the petitions, Executive Secretary
Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice
Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense
78
Secretary and National Security Adviser Norberto Gonzales, Interior and Local
Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as
members. All the petitions, except that of the IBP, also impleaded Armed Forces of
the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President

Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council
like the National Intelligence Coordinating Agency, National Bureau of
Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service
of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational
Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is
no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law
and justice may require. (Emphasis and underscoring supplied)

79
Parenthetically, petitioners do not even allege with any modicum of particularity
how respondents acted without or in excess of their respective jurisdictions, or with
grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting

requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the
case.[10]

In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult
constitutional questions.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule
on locus standi, thus:

Locus standi or legal standing has been defined as a personal and

substantial interest in a case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question on standing is whether a party alleges
such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions.

[A] party who assails the constitutionality of a statute must have a direct
and personal interest. It must show not only that the law or any
governmental act is invalid, but also that it sustained or is in immediate
80
 danger of sustaining some direct injury as a result of its enforcement,
and not merely that it suffers thereby in some indefinite way. It must show
that it has been or is about to be denied some right or privilege to which it
is lawfully entitled or that it is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it

must show that (1) it has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, (2)
the injury is fairly traceable to the challenged action, and (3) the injury is
likely to be redressed by a favorable action. (emphasis and underscoring
supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected

communist fronts by the government, especially the military; whereas individual
petitioners invariably invoke the transcendental importance doctrine and their status
as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public importance dispenses

with the requirement that petitioner has experienced or is in actual danger of
suffering direct and personal injury, cases involving the constitutionality
of penal legislation belong to an altogether different genus of constitutional
litigation. Compelling State and societal interests in the proscription of harmful
conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus
standi.

Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners

in G.R. No. 178890, allege that they have been subjected to close security
surveillance by state security forces, their members followed by suspicious persons
and vehicles with dark windshields, and their offices monitored by men with military
build. They likewise claim that they have been branded as enemies of the [S]tate.[14]

Even conceding such gratuitous allegations, the Office of the Solicitor General
(OSG) correctly points out that petitioners have yet to show

81
any connection between the purported surveillance andthe implementation
of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,

Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-
organizations in G.R. No. 178581, would like the Court to take judicial notice of
respondents alleged action of tagging them as militant organizations fronting for the
Communist Party of the Philippines (CPP) and its armed wing, the National Peoples
Army (NPA). The tagging, according to petitioners, is tantamount to the effects of
proscription without following the procedure under the law.[15] The petition
of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged tagging of petitioners.

Generally speaking, matters of judicial notice have three material

requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits
of the jurisdiction of the court. The principal guide in determining what
facts may be assumed to be judicially known is that of notoriety. Hence,
it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. Moreover, a judicially noticed fact
must be one not subject to a reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by resorting
to sources whose accuracy cannot reasonably be questionable.

Things of common knowledge, of which courts take judicial matters

coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted
by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may
be found in encyclopedias, dictionaries or other publications, are
judicially noticed, provided, they are of such universal notoriety and so
generally understood that they may be regarded as forming part of the
common knowledge of every person. As the common knowledge of man
ranges far and wide, a wide variety of particular facts have been judicially
noticed as being matters of common knowledge. But a court cannot take
judicial notice of any fact which, in part, is dependent on the existence

82
 or non-existence of a fact of which the court has no constructive
knowledge.[16] (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial

notice. Petitioners apprehension is insufficient to substantiate their plea. That no
specific charge or proscription under RA 9372 has been filed against them, three
years after its effectivity, belies any claim of imminence of their perceived threat
emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554,
who merely harp as well on their supposed link to the CPP and NPA. They fail to
particularize how the implementation of specific provisions of RA 9372 would result
in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization,

the United States of America[17] (US) and the European Union[18] (EU) have both
classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist
organizations. The Court takes note of the joint statement of Executive Secretary
Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration
would adopt the US and EU classification of the CPP and NPA as terrorist
organizations.[19] Such statement notwithstanding, there is yet to be filed before the
courts an application to declare the CPP and NPA organizations as domestic
terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in
effect for three years now. From July 2007 up to the present, petitioner-organizations
have conducted their activities fully and freely without any threat of, much less an
actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list

Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and
Luzviminda Ilagan,[20] urged the government to resume peace negotiations with the
NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist
organizations.Considering the policy statement of the Aquino Administration[21] of
resuming peace talks with the NDF, the government is not imminently disposed to

83
ask for the judicial proscription of the CPP-NPA consortium and its allied
organizations.

More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.[22] Of recent development is the filing of
the first case for proscription under Section 17[23] of RA 9372 by the Department of
Justice before the Basilan Regional Trial Court against the Abu
Sayyaf Group.[24] Petitioner-organizations do not in the least allege any link to
the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution

under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in
2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of
Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and
Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges
were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes,
Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front
organizations for the Communist movement were petitioner-organizations KMU,
BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and
COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for petitioners. For
one, those charges were filed in 2006, prior to the enactment of RA 9372, and
dismissed by this Court. For another, rebellion is defined and punished under the
Revised Penal Code. Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to

prospective charges under RA 9372. It cannot be overemphasized that three years
after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus
standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section
84
21 of RA 9372 directing it to render assistance to those arrested or detained under
the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice
to clothe the IBP or any of its members with standing.[27] The IBP failed to
sufficiently demonstrate how its mandate under the assailed statute revolts against
its constitutional rights and duties. Moreover, both the IBP and CODAL have not
pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the
subject of political surveillance, also lacks locus standi. Prescinding from the
veracity, let alone legal basis, of the claim of political surveillance, the Court finds
that she has not shown even the slightest threat of being charged under RA
9372. Similarly lacking in locus standi are former Senator Wigberto
Taada and Senator Sergio Osmea III, who cite their being respectively a human
rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman

Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are
of transcendental importance, which must be settled early and are of far-reaching
implications, without mention of any specific provision of RA 9372 under which
they have been charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants with locus
standi. Petitioners must show an actual, or immediate danger of sustaining, direct
injury as a result of the laws enforcement. To rule otherwise would be to corrupt the
settled doctrine of locus standi, as every worthy cause is an interest shared by the
general public.

Neither can locus standi be conferred upon individual petitioners

as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of
the spending or taxing power of Congress,[28]whereas citizen standing must rest on
direct and personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens has
alleged any direct and personal interest in the implementation of the law.
85
It bears to stress that generalized interests, albeit accompanied by the assertion of a
public right, do not establish locus standi. Evidence of a direct and personal interest
is key.

Petitioners fail to present an actual case

or controversy

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.

Section 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
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.[30] (emphasis and
underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court ruled that the power of
judicial review is limited to actual cases or controversies to be exercised after full
opportunity of argument by the parties. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.[32]

Information Technology Foundation of the Philippines v. COMELEC[33] cannot be

more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to

satisfy scholarly interest, however intellectually challenging. The
controversy must be justiciabledefinite and concrete, touching on the
legal relations of parties having adverse legal interests. In other

86
 words, the pleadings must show an active antagonistic assertion of
a legal right, on the one hand, and a denial thereof on the other
hand; that is, it must concern a real and not merely a theoretical
question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts. (Emphasis and underscoring
supplied)

Thus, a petition to declare unconstitutional a law converting

the Municipality of Makati into a Highly Urbanized City was held to be premature
as it was tacked on uncertain, contingent events.[34]Similarly, a petition that fails to
allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission on

Elections[36] for failure to cite any specific affirmative action of the Commission on
Elections to implement the assailed resolution. It refused, in Abbas v. Commission
on Elections,[37] to rule on the religious freedom claim of the therein petitioners
based merely on a perceived potential conflict between the provisions of the Muslim
Code and those of the national law, there being no actual controversy between real
litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory

grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived
threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient facts to enable the Court
to intelligently adjudicate the issues.[38]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project,[39] allowed the pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since plaintiffs faced a credible threat of

87
prosecution and should not be required to await and undergo a criminal prosecution
as the sole means of seeking relief.[40] The plaintiffs therein filed an action before a
federal court to assail the constitutionality of the material support statute, 18 U.S.C.
2339B (a) (1),[41] proscribing the provision of material support to organizations
declared by the Secretary of State as foreign terrorist organizations. They claimed
that they intended to provide support for the humanitarian and political activities of
two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an

anticipatory petition clearly shows that the challenged prohibition forbids the
conduct or activity that a petitioner seeks to do, as there would then be a
justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that
the challenged provisions of RA 9372 forbid constitutionally
protected conduct or activity that they seek to do.No demonstrable threat has been
established, much less a real and existing one.

Petitioners obscure allegations of sporadic surveillance and supposedly being

tagged as communist fronts in no way approximate a credible threat of
prosecution. From these allegations, the Court is being lured to render an advisory
opinion, which is not its function.[43]

Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory
actions characterized by double contingency, where both the activity the petitioners
intend to undertake and the anticipated reaction to it of a public official are merely
theorized, lie beyond judicial review for lack of ripeness.[44]

The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such
possibility is not peculiar to RA 9372 since the exercise of any power granted by law
may be abused.[45] Allegations of abuse must be anchored on real events before
courts may step in to settle actual controversies involving rights which are legally
demandable and enforceable.

88
A facial invalidation of a statute is allowed only
in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism[46] under RA 9372 in that terms like widespread
and extraordinary fear and panic among the populace and coerce the government
to give in to an unlawful demand are nebulous, leaving law enforcement agencies
with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only
to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to

outline the schools of thought on whether the void-for-vagueness and overbreadth
doctrines are equally applicablegrounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting

the application of the two doctrines to free speech cases. They particularly
cite Romualdez v. Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section

5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically vague and
impermissibly broad. The Court stated that the overbreadth and the vagueness
doctrines have special application only to free-speech cases, and are not appropriate
for testing the validity of penal statutes.[50] It added that, at any rate, the challenged
provision, under which the therein petitioner was charged, is not vague.[51]

While in the subsequent case of Romualdez v. Commission on Elections,[52] the

Court stated that a facial invalidation of criminal statutes is not appropriate, it
nonetheless proceeded to conduct a vagueness analysis, and concluded that the

89
therein subject election offense[53] under the Voters Registration Act of 1996, with
which the therein petitioners were charged, is couched in precise language.[54]

The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice Vicente
V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law
(Republic Act No. 7080) clear and free from ambiguity respecting the definition of
the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a facial invalidation as opposed to an as-applied challenge. He basically
postulated that allegations that a penal statute is vague and overbroad do not justify
a facial review of its validity. The pertinent portion of the Concurring Opinion of
Justice Mendoza, which was quoted at length in the main Estradadecision, reads:
A facial challenge is allowed to be made to a vague statute and to one which
is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application

only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that
90
no set of circumstances exists under which the Act would be valid." As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are

analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be
made without concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its

deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is
charged.[56] (Underscoring supplied.)

91
The confusion apparently stems from the interlocking relation of
the overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of due process
of law) or a speech regulation (under a claim of abridgement of the freedom of
speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate
on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning
and differ as to its application. It is repugnant to the Constitution in two respects: (1)
it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.[57] The overbreadth doctrine, meanwhile, decrees 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.[58]

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from
that behavior, even though some of it is protected.[59]

A facial challenge is likewise different from an as-applied challenge.

Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.[60]

Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount
92
a facial challenge against a criminal statute on either vagueness or overbreadth
grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to
avert the chilling effect on protected speech, the exercise of which should not at all
times be abridged.[62] As reflected earlier, this rationale is inapplicable to plain penal
statutes that generally bear an in terrorem effect in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts formerly
considered innocent and lawful, so long as it refrains from diminishing or dissuading
the exercise of constitutionally protected rights.[63]

The Court reiterated that there are critical limitations by which a criminal statute
may be challenged and underscored that an on-its-face invalidation of penal statutes
x x x may not be allowed.[64]

[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially
challenged. Under no case may ordinary penal statutes be subjected to
a facial challenge. The rationale is obvious. If a facial challenge to a penal
statute is permitted, the prosecution of crimes may be hampered. No
prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would
effectively go against the grain of the doctrinal requirement of an existing
and concrete controversy before judicial power may be appropriately
exercised. A facial challenge against a penal statute is, at best, amorphous
and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will
impair the States ability to deal with crime. If warranted, there would be
nothing that can hinder an accused from defeating the States power to
prosecute on a mere showing that, as applied to third parties, the penal
statute is vague or overbroad, notwithstanding that the law is clear as
applied to him.[65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.

93
By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost
always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts
as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily,
a particular litigant claims that a statute is unconstitutional as applied to him
or her; if the litigant prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis,
those rules give way; challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute "on its face," not
merely "as applied for" so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern
with the "chilling;" deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an overbroad
laws "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.[66] (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least
two cases,[67] observed that the US Supreme Court has not recognized an overbreadth
doctrine outside the limited context of the First Amendment,[68] and that claims of
facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words.[69] In Virginia v. Hicks,[70] it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or regulation that
is not specifically addressed to speech or speech-related conduct. Attacks on overly
broad statutes are justified by the transcendent value to all society of constitutionally
protected expression.[71]

94
Since a penal statute may only be assailed for being
vague as applied to petitioners, a limited vagueness
analysis of the definition of terrorism in RA 9372 is
legally impermissible absent an actual or imminent
charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the therein
petitioner, finding, however, that there was no basis to review the law on its face and
in its entirety.[72] It stressed that statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular defendant.[73]

American jurisprudence[74] instructs that vagueness challenges that do not involve

the First Amendment must be examined in light of the specific facts of the case at
hand and not with regard to the statute's facial validity.

For more than 125 years, the US Supreme Court has evaluated defendants claims
that criminal statutes are unconstitutionally vague, developing a doctrine hailed as
among the most important guarantees of liberty under law.[75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process
clause has been utilized in examining the constitutionality of criminal statutes. In at
least three cases,[76] the Court brought the doctrine into play in analyzing an
ordinance penalizing the non-payment of municipal tax on fishponds, the crime of
illegal recruitment punishable under Article 132(b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the
petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed
penal statute, unlike in the present case.

There is no merit in the claim that RA 9372

regulates speech so as to permit a facial
analysis of its validity

95
From the definition of the crime of terrorism in the earlier cited Section 3 of RA
9372, the following elements may be culled: (1) the offender commits an act
punishable under any of the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws; (2) the commission of the predicate crime
sows and creates a condition of widespread and extraordinary fear and panic among
the populace; and (3) the offender is actuated by the desire to coerce the government
to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of unlawful demand in the definition of
terrorism[77] must necessarily be transmitted through some form of expression
protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not
speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying
phrases in the other elements of the crime, including the coercion of the government
to accede to an unlawful demand. Given the presence of the first element, any
attempt at singling out or highlighting the communicative component of the
prohibition cannot recategorize the unprotected conduct into a protected speech.

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly

focuses on just one particle of an element of the crime. Almost every commission of
a crime entails some mincing of words on the part of the offender like in declaring
to launch overt criminal acts against a victim, in haggling on the amount of ransom
or conditions, or in negotiating a deceitful transaction. An analogy in
one U.S. case[78] illustrated that the fact that the prohibition on discrimination in
hiring on the basis of race will require an employer to take down a sign reading
White Applicants Only hardly means that the law should be analyzed as one
regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor the
essence of the whole act as conductand not speech. This holds true a fortiori in the

96
present case where the expression figures only as an inevitable incident of making
the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been
deemed an abridgement of freedom of speech or press to make a course of
conduct illegal merely because the conduct was, in part,
initiated, evidenced, or carried out by means of language, either spoken,
written, or printed. Such an expansive interpretation of the constitutional
guaranties of speech and press would make it practically impossible ever to
enforce laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society.[79](italics and
underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct.[80] Since speech is not involved here, the
Court cannot heed the call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of
the therein subject penal statute as applied to the therein petitioners inasmuch as they
were actually charged with the pertinent crimes challenged on vagueness
grounds. The Court in said cases, however, found no basis to review the assailed
penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since the therein
plaintiffs faced a credible threat of prosecution and should not be required to await
and undergo a criminal prosecution as the sole means of seeking relief.

As earlier reflected, petitioners have established neither an actual charge nor a

credible threat of prosecution under RA 9372. Even a limited vagueness analysis
of the assailed definition of terrorism is thus legally impermissible. The Court
reminds litigants that judicial power neither contemplates speculative counseling on
a statutes future effect on hypothetical scenarios nor allows the courts to be used as
an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.

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G.R. No. L-45685 November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the issuance of the writ
of certiorari and of prohibition to the Court of First Instance of Manila so that this court may review
the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of
the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and
thereafter prohibit the said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking
Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano
Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine
Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad
interim of the seventh branch of the Court of First Instance of Manila, who heard the application of
the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the
case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine
jurisprudence both in the length of time spent by the court as well as in the volume in the testimony
and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and
Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence
to an indeterminate penalty of from five years and six months of prision correccional to seven years,
six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects.
Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial
which were denied on December 17, 1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied the petition

98
for certiorari in November, 1936. This court, on November 24, 1936, denied the
petition subsequently filed by the defendant for leave to file a second alternative motion for
reconsideration or new trial and thereafter remanded the case to the court of origin for execution of
the judgment.

The instant proceedings have to do with the application for probation filed by the herein respondent
Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act
No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal
record and that he would observe good conduct in the future. The Court of First Instance of Manila,
Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of
Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an
undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding
that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y
que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and
concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition
for probation for the reason that:

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia

social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario
acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar
en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia
de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes,
en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto
judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid
motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of
counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a
petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for

99
leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation
and purely as a matter of courtesy to the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance
of an order of execution of the judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene
as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all
events, said motion should be denied with respect to certain attorneys signing the same who were
members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for
intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned
date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to
the circumstances under which said motion for leave to intervene as amici curiae was signed and
submitted to court was to have been heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to put an end to what they alleged was
an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of
the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted without jurisdiction or in excess of his
jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under
probation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made
to apply only to the provinces of the Philippines; it nowhere states that it is to be
made applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in
the absence of a special provision, the term "province" may be construed to include
the City of Manila for the purpose of giving effect to laws of general application, it is
also true that Act No. 4221 is not a law of general application because it is made to
apply only to those provinces in which the respective provincial boards shall have
provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221
would not be applicable to it because it has provided for the salary of a probation
officer as required by section 11 thereof; it being immaterial that there is an Insular

100
 Probation Officer willing to act for the City of Manila, said Probation Officer provided
for in section 10 of Act No. 4221 being different and distinct from the Probation
Officer provided for in section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the application for
probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in
excess thereof in continuing to entertain the motion for reconsideration and by failing to commit
Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to
the granting or denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation
on June 28, 1937, it became final and executory at the moment of its rendition.

(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to
modify or change the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime
for which he was convicted by final judgment of this court, which finding is not only presumptuous
but without foundation in fact and in law, and is furthermore in contempt of this court and a violation
of the respondent's oath of office as ad interim judge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which became
imperative when he issued his order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary
course of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai
Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a
system of probation for persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of
the Philippines guaranteeing equal protection of the laws because it confers upon the provincial
board of its province the absolute discretion to make said law operative or otherwise in their
respective provinces, because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the
Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for
the further reason that it gives the provincial boards, in contravention of the Constitution (section 2,
Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In another supplementary petition dated
September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of
the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding
the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an
encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221
not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted

101
delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the
People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and
the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power,
were presented. Another joint memorandum was filed by the same persons on the same day,
October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection
of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole
Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the
private prosecution may intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional question in prohibition
proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and was
still pending resolution before the trial court when the present petition was filed with
this court.

(3) That the petitioners having themselves raised the question as to the execution of
judgment before the trial court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying probation is
unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court
of First Instance to decide the question as to whether or not the execution will lie, this
court nevertheless cannot exercise said jurisdiction while the Court of First Instance
has assumed jurisdiction over the same upon motion of herein petitioners
themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive
the trial court of its jurisdiction over the case and elevate the proceedings to this
court, should not be tolerated because it impairs the authority and dignity of the trial
court which court while sitting in the probation cases is "a court of limited jurisdiction
but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although
the Probation Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution or decision of an inferior
court is appealable to the superior court.

102
 (7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and executory
for the reason that the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of fifteen days, which motion
the trial court was able to resolve in view of the restraining order improvidently and
erroneously issued by this court. lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when he
presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is not
appealable, it is incumbent upon the accused to file an action for the issuance of the
writ of certiorari with mandamus, it appearing that the trial court, although it believed
that the accused was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the trial court could
lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an opportunity to correct or cure
the same.

(10) That on hypothesis that the resolution of this court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or upon
petition of the proper party, the petition in the latter case taking the form of a motion
for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation will
be closed from the moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No.
4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an
undue delegation of legislative power, does not infringe the equal protection clause of the
Constitution, and does not encroach upon the pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the respondents reiterate the view that section 11
of Act No. 4221 is free from constitutional objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings, much less question the validity of Act No.
4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of
the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in
unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the
Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed
out of time but was admitted by resolution of this court and filed anew on November 5, 1937.
This memorandum elaborates on some of the points raised by the respondents and refutes those
brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the present case, we
noted that the court below, in passing upon the merits of the application of the respondent Mariano

103
Cu Unjieng and in denying said application assumed the task not only of considering the merits of
the application, but of passing upon the culpability of the applicant, notwithstanding the final
pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment.
While a probation case may look into the circumstances attending the commission of the offense,
this does not authorize it to reverse the findings and conclusive of this court, either directly or
indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs,
averments, and pleadings of the parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of
First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be
no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands
conscious realization of the position that they occupy in the interrelation and operation of the
intergrated judicial system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been
properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a discussion of certain incidental questions
raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles is
necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised and presented inappropriate cases
and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis
mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12
C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in ordinary
actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the
remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus,
in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12
C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259
[affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed.,
845]), this court declared an act of the legislature unconstitutional in an action of quo
warranto brought in the name of the Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783;
Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an
application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs.
Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.)
The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28
Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited).
The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the
present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to
the Supreme Court of the United States which reversed the judgment of this court and held that the

104
Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme
court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior
tribunals or persons, and original jurisdiction over courts of first instance, when such courts
are exercising functions without or in excess of their jurisdiction. It has been held by that
court that the question of the validity of the criminal statute must usually be raised by a
defendant in the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a
new act seriously affected numerous persons and extensive property rights, and was likely to
cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue
to the act's validity promptly before it and decide in the interest of the orderly administration
of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52
Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs.
Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas.,
1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37
Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad powers in prohibition granted to that
court under the Island Code, we acquiesce in the desire of the parties.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The
general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie
whether the inferior court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an
unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50
C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs.
Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec.,
669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No.
4221 which prescribes in detailed manner the procedure for granting probation to accused persons
after their conviction has become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution of the sentence is
recognized and, according to a number of state courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States
expressed the opinion that under the common law the power of the court was limited to temporary
suspension, and brushed aside the contention as to inherent judicial power saying, through Chief
Justice White:

Indisputably under our constitutional system the right to try offenses against the criminal laws
and upon conviction to impose the punishment provided by law is judicial, and it is equally to

105
 be conceded that, in exerting the powers vested in them on such subject, courts inherently
possess ample right to exercise reasonable, that is, judicial, discretion to enable them to
wisely exert their authority. But these concessions afford no ground for the contention as to
power here made, since it must rest upon the proposition that the power to enforce begets
inherently a discretion to permanently refuse to do so. And the effect of the proposition urged
upon the distribution of powers made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to define and fix the punishment for
crime is legislative and includes the right in advance to bring within judicial discretion, for the
purpose of executing the statute, elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed
by law and ascertained according to the methods by it provided belongs to the executive
department.

Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of
First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion
that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in
the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not
lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional
issue has been squarely presented not only before this court by the petitioners but also before the
trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge
of the court below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The respondent
judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the constitutionality of a statute by one
who has no interest in defeating it because his rights are not affected by its operation. The
respondent judge further stated that it may not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge,
conscious of the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is
constitutional. While therefore, the court a quo admits that the constitutional question was raised
before it, it refused to consider the question solely because it was not raised by a proper party.
Respondents herein reiterates this view. The argument is advanced that the private prosecution has
no personality to appear in the hearing of the application for probation of defendant Mariano Cu
Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is
true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity,

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so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in
the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the proceedings, either in the trial court or on
appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on
the constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville
& B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908],
214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W.,
913.) And it has been held that a constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561;
57 S., 870.) As to the power of this court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and point with emphasis to the case of Yu
Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is not the proper party to raise the constitutional
question here — a point we do not now have to decide — we are of the opinion that the People of
the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a
proper party in the present proceedings. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if
Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state
can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73
Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining
corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer
of the state to question the constitutionality of the statute was though, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction in void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality
will be considered on its being brought to the attention of the court by persons interested in the effect
to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was
not properly raised in the court below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario,
26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question affecting the constitutionality
of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said that the question may be raised
for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p.
786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional
question, though raised for first time on appeal, if it appears that a determination of the question is

107
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it involves the
jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of
this court to consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad,
supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by
the private prosecution, is not the proper party to raise the constitutional question here — a point we
do not now have to decide — we are of the opinion that the People of the Philippines, represented
by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of
the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;
41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through
Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a law
enacted by their representatives; that to an accusation by the people of Michigan of
usurpation their government, a statute enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving
effect to justify action under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party
affected by an unconstitutional act of the legislature: "The people have a deep and vested
interest in maintaining all the constitutional limitations upon the exercise of legislative
powers." (Allen vs. Mckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was
brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the action, the Supreme Court of
Kansas said:

. . . the state is a proper party — indeed, the proper party — to bring this action. The state is
always interested where the integrity of its Constitution or statutes is involved.

"It has an interest in seeing that the will of the Legislature is not disregarded,
and need not, as an individual plaintiff must, show grounds of fearing more

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 specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)

Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General,
or county attorney, may exercise his bet judgment as to what sort of action he will bring to
have the matter determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience
to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).

Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197
S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La.,
597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of
Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119
N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the
Supreme Court of Luisiana said:

It is contended by counsel for Herbert Watkins that a district attorney, being charged with the
duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of
the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of
Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs.
Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with
one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the
ruling was the judge should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant. State ex rel. Nicholls,
Governor, etc., is authority for the proposition merely that an officer on whom a statute
imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he
considers the statute unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for
the proposition merely that executive officers, e.g., the state auditor and state treasurer,
should not decline to perform ministerial duties imposed upon them by a statute, on the
ground that they believe the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to
support the Constitution of the state. If, in the performance of his duty he finds two statutes in
conflict with each other, or one which repeals another, and if, in his judgment, one of the two
statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is
compelled to submit to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the Legislature would be free from
constitutional limitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the
state may impugn the validity of its laws. They have not cited any authority running clearly in the
opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated
is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that

109
the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)

The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has
not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly
regarded by him as constitutional, is no reason for considering the People of the Philippines
estopped from nor assailing its validity. For courts will pass upon a constitutional questions only
when presented before it in bona fide cases for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all
others are justified in relying upon the statute and treating it as valid until it is held void by the courts
in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary
to the resolution of the instant case. For, ". . . while the court will meet the question with firmness,
where its decision is indispensable, it is the part of wisdom, and just respect for the legislature,
renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9
Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary
whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs.
Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann.
Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan
vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129
N. W., 605), as where the right of a party is founded solely on a statute the validity of which is
attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972;
Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the
Probation Act is a new addition to our statute books and its validity has never before been passed
upon by the courts; that may persons accused and convicted of crime in the City of Manila have
applied for probation; that some of them are already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been
at large for a period of about four years since his first conviction. All wait the decision of this court on
the constitutional question. Considering, therefore, the importance which the instant case has
assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385;
[1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207
N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327;
133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil.,
304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch
as the property and personal rights of nearly twelve thousand merchants are affected by these
proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the main issue. We have
here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this
point was sustained by the Supreme Court of the United States. A more binding authority in support
of the view we have taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been
properly raised. Now for the main inquiry: Is the Act unconstitutional?

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Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the
Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid
because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside
a statute in conflict therewith. This is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable
doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature
approved by the executive, is presumed to be within constitutional limitations. The responsibility of
upholding the Constitution rests not on the courts alone but on the legislature as well. "The question
of the validity of every statute is first determined by the legislative department of the government
itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil.,
250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained
by the sanction of the executive. The members of the Legislature and the Chief Executive have
taken an oath to support the Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not intend to violate the
Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations
of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that
peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed
through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts
will not set aside a law as violative of the Constitution except in a clear case. This is a proposition
too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention to
the fact that the President of the Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question
was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the President in his message dated
September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation
Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality
Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said
bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken
out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It
is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the determination of actual controversies
submitted for our determination. Whether or not the Executive should express or in any manner
insinuate his opinion on a matter encompassed within his broad constitutional power of veto but
which happens to be at the same time pending determination in this court is a question of propriety
for him exclusively to decide or determine. Whatever opinion is expressed by him under these
circumstances, however, cannot sway our judgment on way or another and prevent us from taking
what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us
to make any vehement affirmance during this formative period of our political history, it is that we are
independent of the Executive no less than of the Legislative department of our government —
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see
it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation
of legislative power and (3) that it denies the equal protection of the laws.

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1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in
force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the
Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit
fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the
Jones Law, as at common law, pardon could be granted any time after the commission of the
offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In
re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like
the President of the United States, to pardon a person before the facts of the case were fully brought
to light. The framers of our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after conviction". So, too,
under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is
also the rule generally followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an
impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and
determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide,
Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323;
12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment
attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence,
inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment,
depending upon the gravity of the offense committed, together with removal from office and
incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention
of "commutation" and of the power of the executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes
to state that the pardoning power has remained essentially the same. The question is: Has the
pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The
exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by
any legislative restrictions, nor can like power be given by the legislature to any other officer or
authority. The coordinate departments of government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments can exercise any powers appertaining
to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., ,
and cases cited.) " . . . where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself
nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp.
838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is
for that reason unconstitutional and void. But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United
States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United
States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the
opinion of the court that under the common law the power of the court was limited to temporary
suspension and that the right to suspend sentenced absolutely and permanently was vested in the
executive branch of the government and not in the judiciary. But, the right of Congress to establish

112
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the
future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by
probation legislation or such other means as the legislative mind may devise, to such judicial
discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise
discretion the infinite variations which may be presented to them for judgment, recourse must be had
Congress whose legislative power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of a federal probation
law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec.
724). This was followed by an appropriation to defray the salaries and expenses of a certain number
of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the
Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced
to imprisonment by a district court has begun to serve his sentence, that court has no power under
the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence
was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act
was not considered but was assumed. The court traced the history of the Act and quoted from the
report of the Committee on the Judiciary of the United States House of Representatives (Report No.
1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised
a form of probation either, by suspending sentence or by placing the defendants under state
probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27;
61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the
Supreme Court denied the right of the district courts to suspend sentenced. In the same
opinion the court pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .

Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the
House. In 1920, the judiciary Committee again favorably reported a probation bill to the
House, but it was never reached for definite action.

If this bill is enacted into law, it will bring the policy of the Federal government with reference
to its treatment of those convicted of violations of its criminal laws in harmony with that of the
states of the Union. At the present time every state has a probation law, and in all but twelve
states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In
Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under consideration
have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and
the constitutionality of the act fully sustained, and the same held in no manner to encroach
upon the pardoning power of the President. This case will be found to contain an able and
comprehensive review of the law applicable here. It arose under the act we have to consider,
and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d],
590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit
(Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.

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We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal
language, pointed to Congress as possessing the requisite power to enact probation laws, that a
federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been
assumed by the Supreme Court of the United States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may
legally enact a probation law under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542;
L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature
to denominate and define all classes of crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann.
Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment
and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918],
108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the
courts — particularly the trial courts — large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by vesting this power in
the courts, they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the degree of malice and the injury caused by
the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case
to submit to the Chief Executive, through the Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law provides for a penalty
composed of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty according to the
result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the
courts to determine, within the limits of each periods, in case the penalty prescribed by law contains
three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are
allowed to fix any amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall
be imposed" upon a person under fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than that prescribed by law for the crime
which he has committed. Article 69 of the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having
in mind the social danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted
form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the
death penalty is not imposed when the guilty person is more than seventy years of age, or where
upon appeal or revision of the case by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also,
sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death

114
sentence is not to be inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when
a convict shall become insane or an imbecile after final sentence has been pronounced, or while he
is serving his sentenced, the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).

But the desire of the legislature to relax what might result in the undue harshness of the penal laws
is more clearly demonstrated in various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act
No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing
a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and to a minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203)
which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of
the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National
Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal
laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by
permitting the suspension of the execution of the judgment in the discretion of the trial court, after
due hearing and after investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in reality decreed that in
certain cases no punishment at all shall be suffered by the convict as long as the conditions of
probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in
conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the
language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as a judicial function under and within the
limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal
causes, with which the executive can have nothing to do." (Ex parteBates, supra.) In Williams vs.
State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia
probation statute against the contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor alone is vested with the power to pardon after final
sentence has been imposed by the courts, the power of the courts to imposed any penalty which
may be from time to time prescribed by law and in such manner as may be defined cannot be
questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful
for the legislature to vest in the courts the power to suspend the operation of a sentenced, by
probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In
re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim.,
Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex
parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am.
St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95
Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144;
150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga.,
509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921],

115
43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton
[1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs.
Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De
Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac.,
425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50;
91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R.
A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs.
District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E.,
274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State
vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,
1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55
Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs.
Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70
S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State
[1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548;
165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State
[1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211;
54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va.,
802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand
vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this
long catena of authorities holding that the courts may be legally authorized by the legislature to
suspend sentence by the establishment of a system of probation however characterized. State ex
rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the
execution of a sentence until otherwise ordered by the court, and required that the convicted person
be placed under the charge of a parole or peace officer during the term of such suspension, on such
terms as the court may determine, was held constitutional and as not giving the court a power in
violation of the constitutional provision vesting the pardoning power in the chief executive of the
state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually district and
different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions
([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court
of Appeals of New York said:

. . . The power to suspend sentence and the power to grant reprieves and pardons, as
understood when the constitution was adopted, are totally distinct and different in their
nature. The former was always a part of the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply postpones the judgment of the
court temporarily or indefinitely, but the conviction and liability following it, and the civil
disabilities, remain and become operative when judgment is rendered. A pardon reaches
both the punishment prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is

116
 as innocent as if he had never committed the offense. It removes the penalties and
disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and
gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed.,
366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149;
24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these instruments
upon the executive with full knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by the English crown, or
by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed.,
421.) As this power was understood, it did not comprehend any part of the judicial functions
to suspend sentence, and it was never intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its
own judgments, that criminal courts has so long maintained. The two powers, so distinct and
different in their nature and character, were still left separate and distinct, the one to be
exercised by the executive, and the other by the judicial department. We therefore conclude
that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence
in certain cases after conviction, — a power inherent in such courts at common law, which
was understood when the constitution was adopted to be an ordinary judicial function, and
which, ever since its adoption, has been exercised of legislative power under the
constitution. It does not encroach, in any just sense, upon the powers of the executive, as
they have been understood and practiced from the earliest times. (Quoted with approval in
Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under
the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on
probation. Section 4 of the Act provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the period of probation shall have been
terminated and the probation officer shall have submitted a report, and the court shall have found
that the probationer has complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody — subject to the control of the probation officer and of
the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and,
when rearrested, may be committed to prison to serve the sentence originally imposed upon him.
(Secs. 2, 3, 5 and 6, Act No. 4221.)

The probation described in the act is not pardon. It is not complete liberty, and may be far
from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and find prescribed by the criminal laws. For this reason its
application is as purely a judicial act as any other sentence carrying out the law deemed
applicable to the offense. The executive act of pardon, on the contrary, is against the criminal
law, which binds and directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for
this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is
relied upon most strongly by the petitioners as authority in support of their contention that the power
to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the
Jones Law, may not be conferred by the legislature upon the courts by means of probation law
authorizing the indefinite judicial suspension of sentence. We have examined that case and found

117
that although the Court of Criminal Appeals of Texas held that the probation statute of the state in
terms conferred on the district courts the power to grant pardons to persons convicted of crime, it
also distinguished between suspensions sentence on the one hand, and reprieve and commutation
of sentence on the other. Said the court, through Harper, J.:

That the power to suspend the sentence does not conflict with the power of the Governor to
grant reprieves is settled by the decisions of the various courts; it being held that the
distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension is for an indefinite
time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E.,
883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in
conflict with the power confiding in the Governor to grant commutations of punishment, for a
commutations is not but to change the punishment assessed to a less punishment.

In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme
Court of Montana had under consideration the validity of the adult probation law of the state enacted
in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid
as not impinging upon the pardoning power of the executive. In a unanimous decision penned by
Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at
the time our Constitution was adopted, and no one of them was intended to comprehend the
suspension of the execution of the judgment as that phrase is employed in sections 12078-
12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution
of the laws which exempts the individual on whom it is bestowed from the punishment the
law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed.,
640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of
the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49
Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep.,
563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary
suspension of execution (Butler vs. State, 97 Ind., 373).

Few adjudicated cases are to be found in which the validity of a statute similar to our section
12078 has been determined; but the same objections have been urged against parole
statutes which vest the power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite uniformly, as a reference to
the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558,
reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)

We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The
pardoning power, in respect to those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The President may yet pardon the
probationer and thus place it beyond the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)

2. But while the Probation Law does not encroach upon the pardoning power of the executive and is
not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of
legislative power?

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Under the constitutional system, the powers of government are distributed among three coordinate
and substantially independent organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the Constitution which, in turn, is the
highest expression of popular will. Each has exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power — is vested in a bicameral Legislature by the
Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1,
Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape
its duties and responsibilities by delegating that power to any other body or authority. Any attempt to
abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare
potest. This principle is said to have originated with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a principle of agency, was established by Lord
Coke in the English public law in decisions forbidding the delegation of judicial power, and found its
way into America as an enlightened principle of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The
classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere but where the people have." (Locke
on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted
language: "One of the settled maxims in constitutional law is, that the power conferred upon the
legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the state has located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the Constitution itself is charged. The power
to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve
itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor
can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the
doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty
to be performed by the delegate by the instrumentality of his own judgment acting immediately upon
the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at
p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It
admits of exceptions. An exceptions sanctioned by immemorial practice permits the central
legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick
[1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H.,
279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by
local authorities, and general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as the grant of the authority to
prescribed local regulations, according to immemorial practice, subject of course to the interposition
of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same
principle, Congress is powered to delegate legislative power to such agencies in the territories of the
United States as it may select. A territory stands in the same relation to Congress as a municipality
or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct.
Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup.
Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of
legislative power to the people at large. Some authorities maintain that this may not be done (12 C.
J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be

119
republican in form because of its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked
upon with favor by certain progressive courts, the sting of the decisions of the more conservative
courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488;
23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R.
A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution
of the Philippines provides that "The National Assembly may by law authorize the President, subject
to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or
export quotas, and tonnage and wharfage dues." And section 16 of the same article of the
Constitution provides that "In times of war or other national emergency, the National Assembly may
by law authorize the President, for a limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the absence of the foregoing constitutional
provisions, the President could be authorized to exercise the powers thereby vested in him. Upon
the other hand, whatever doubt may have existed has been removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards have
provided for the salary of a probation officer at rates not lower than those now provided for
provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to
authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and
to make the sale of it in violation of the proclamation a crime. (See and cf. Compañia General de
Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however,
is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules
and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R.
C. L., pp. 177-179.)

For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies
endowed with power to determine when the Act should take effect in their respective provinces.
They are the agents or delegates of the legislature in this respect. The rules governing delegation of
legislative power to administrative and executive officers are applicable or are at least indicative of
the rule which should be here adopted. An examination of a variety of cases on delegation of power
to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly
asserted that the rationale revolves around the presence or absence of a standard or rule of action
— or the sufficiency thereof — in the statute, to aid the delegate in exercising the granted discretion.
In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others
that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does
not lay down any rule or definite standard by which the administrative officer or board may be guided
in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925],
295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson

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Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L.,
title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards
in the exercise of their discretionary power to determine whether or not the Probation Act shall apply
in their respective provinces? What standards are fixed by the Act? We do not find any and none
has been pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent
case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise
arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority
extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the
various provincial boards to determine. In other words, the provincial boards of the various provinces
are to determine for themselves, whether the Probation Law shall apply to their provinces or not at
all. The applicability and application of the Probation Act are entirely placed in the hands of the
provincial boards. If the provincial board does not wish to have the Act applied in its province, all that
it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The
plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the
same effect are the decision of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660)
and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the
validity of the law conferring upon the Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian
inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor
and approved by the provincial board. In the third case, it was held proper for the legislature to vest
in the Governor-General authority to suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make
this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."

It should be observed that in the case at bar we are not concerned with the simple transference of
details of execution or the promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions
would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56
Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660.)

It is connected, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community (6 R. C. L.,
116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard
([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is
a mental process common to all branches of the government. (Dowling vs. Lancashire Ins.

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Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938;
Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup.
Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the
orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement
in Prof. Willoughby's treatise on the Constitution of the United States in the following language —
speaking of declaration of legislative power to administrative agencies: "The principle which permits
the legislature to provide that the administrative agent may determine when the circumstances are
such as require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done according to the terms of the law by
which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p.
1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed.,
971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon which the Act shall take effect
may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide
that a contingencies leaving to some other person or body the power to determine when the
specified contingencies has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by
the provincial board. It leaves, as we have already said, the entire operation or non-operation of the
law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited.
A provincial board need not investigate conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule, — limited by no principle of expendiency announced by
the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It
may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or
failing to appropriate any funds for the salary of a probation officer. This is a matter which rest
entirely at its pleasure. The fact that at some future time — we cannot say when — the provincial
boards may appropriate funds for the salaries of probation officers and thus put the law into
operation in the various provinces will not save the statute. The time of its taking into effect, we
reiterate, would yet be based solely upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than legislature itself.

The various provincial boards are, in practical effect, endowed with the power of suspending the
operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions
provided that laws may be suspended only by the legislature or by its authority. Thus, section 28,
article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be
exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be suspended, except by authority of the General
Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be
enjoyed by others. The suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:

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 By the twentieth article of the declaration of rights in the constitution of this commonwealth, it
is declared that the power of suspending the laws, or the execution of the laws, ought never
to be exercised but by the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta of England, and from the bill of
rights passed in the reign of William and Mary. The bill of rights contains an enumeration of
the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and
the laws and liberties of the kingdom; and the first of them is the assuming and exercising a
power of dispensing with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of rights contained in the
statute is, that the exercise of such power, by legal authority without consent of parliament, is
illegal. In the tenth section of the same statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the
same should be held void and of no effect, except a dispensation be allowed of in such
statute." There is an implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English Constitution, "that absolute
despotic power, which must in all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.

The principles of our government are widely different in this particular. Here the sovereign
and absolute power resides in the people; and the legislature can only exercise what is
delegated to them according to the constitution. It is obvious that the exercise of the power in
question would be equally oppressive to the subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one man or by a number of men. It
cannot be supposed that the people when adopting this general principle from the English bill
of rights and inserting it in our constitution, intended to bestow by implication on the general
court one of the most odious and oppressive prerogatives of the ancient kings of England. It
is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit
of our constitution and laws, that any one citizen should enjoy privileges and advantages
which are denied to all others under like circumstances; or that ant one should be subject to
losses, damages, suits, or actions from which all others under like circumstances are
exempted.

To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to
the owner of domestic animals wounded by it for the damages without proving a knowledge of it
vicious disposition. By a provision of the act, power was given to the board of supervisors to
determine whether or not during the current year their county should be governed by the provisions
of the act of which that section constituted a part. It was held that the legislature could not confer that
power. The court observed that it could no more confer such a power than to authorize the board of
supervisors of a county to abolish in such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in
Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.)
In that case a general statute formulating a road system contained a provision that "if the county
court of any county should be of opinion that the provisions of the act should not be enforced, they
might, in their discretion, suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period specified in such order;
and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a
former act, and yet it is left to the county court to say which act shall be enforce in their county. The
act does not submit the question to the county court as an original question, to be decided by that
tribunal, whether the act shall commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did not, then, require the county court
to do any act in order to give it effect. But being the law in the county, and having by its provisions

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superseded and abrogated the inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to determine which law shall be in force, it is urge
before us that the power then to be exercised by the court is strictly legislative power, which under
our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the
present case, the question is not presented in the abstract; for the county court of Saline county,
after the act had been for several months in force in that county, did by order suspend its operation;
and during that suspension the offense was committed which is the subject of the present indictment
. . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those applicable to other
localities and, while recognizing the force of the principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the
people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character
which should receive different treatment in different localities placed under different circumstances.
"They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in different localities, and they are sustained on what
seems to us the impregnable ground, that the subject, though not embraced within the ordinary
powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-
government and the propriety of leaving matters of purely local concern in the hands of local
authorities or for the people of small communities to pass upon, we believe that in matters of general
of general legislation like that which treats of criminals in general, and as regards the general subject
of probation, discretion may not be vested in a manner so unqualified and absolute as provided in
Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the
operation of the Probation Act in particular provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby
are given absolute discretion to determine whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance
until the provincial boards should decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by what may be done under its provisions.
(Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5
Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of government is vested in the
representatives of the people and that these representatives are no further restrained under our
system than by the express language of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35
Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind
that a constitution is both a grant and a limitation of power and one of these time-honored limitations
is that, subject to certain exceptions, legislative power shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which
prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1.
Constitution of the Philippines.)

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This basic individual right sheltered by the Constitution is a restraint on all the tree grand
departments of our government and on the subordinate instrumentalities and subdivision thereof,
and on many constitutional power, like the police power, taxation and eminent domain. The equal
protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of
the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup.
Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.)
Of course, what may be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union
Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others in prohibited. But classification on a reasonable
basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S.,
28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41
Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on substantial distinctions which make real
differences; it must be germane to the purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911],
147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56
Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79,
55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs.
Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene
[1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs.
Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted
delegation of legislative power, although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary fund to defray the salary of a probation
officer, while another province may refuse or fail to do so. In such a case, the Probation Act would
be in operation in the former province but not in the latter. This means that a person otherwise
coming within the purview of the law would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another province would be denied those same
benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial
boards to appropriate the necessary funds for the salaries of the probation officers in their respective
provinces, in which case no inequality would result for the obvious reason that probation would be in
operation in each and every province by the affirmative action of appropriation by all the provincial
boards. On that hypothesis, every person coming within the purview of the Probation Act would be
entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province,
through its provincial board, should appropriate any amount for the salary of the probation officer —
which is the situation now — and, also, if we accept the contention that, for the purpose of the
Probation Act, the City of Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation officer. These different
situations suggested show, indeed, that while inequality may result in the application of the law and
in the conferment of the benefits therein provided, inequality is not in all cases the necessary result.
But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in
which discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should assume the
task of setting aside a law vulnerable on that score, but premises and circumstances considered, we
are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the
law and is on that account bad. We see no difference between a law which permits of such denial. A
law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and
illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman
[1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed.,
543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S.,

125
370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo
vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218;
18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.
Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep.,
495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their
effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law.
ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the
law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372;
Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra;
State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54
N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may
said Act be in force in one or several provinces and not be in force in other provinces, but one
province may appropriate for the salary of the probation officer of a given year — and have probation
during that year — and thereafter decline to make further appropriation, and have no probation is
subsequent years. While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in
a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S.,
150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.) lawph!1.net

Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States
([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a
denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not
require territorial uniformity. It should be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by General Orders No. 58. No question
of legislative authority was involved and the alleged denial of the equal protection of the laws was
the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila
(Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance
of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination
in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other hand, an analysis of the
arguments and the decision indicates that the investigation by the prosecuting attorney — although
not in the form had in the provinces — was considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and taken into account by the legislature
itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a
situation where the constitution of Missouri permits appeals to the Supreme Court of the state from
final judgments of any circuit court, except those in certain counties for which counties the
constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the constitution that makes the
apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is
also repugnant to equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the
next inquiry is whether or not the entire Act should be avoided.

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 In seeking the legislative intent, the presumption is against any mutilation of a statute, and
the courts will resort to elimination only where an unconstitutional provision is interjected into
a statute otherwise valid, and is so independent and separable that its removal will leave the
constitutional features and purposes of the act substantially unaffected by the process.
(Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in
Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct.
Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated
the well-established rule concerning partial invalidity of statutes in the following language:

. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is
valid, the valid portion, if separable from the valid, may stand and be enforced. But in order
to do this, the valid portion must be in so far independent of the invalid portion that it is fair to
presume that the Legislative would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86
N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District,
99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E.,
798.) The void provisions must be eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L.
R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26
L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.
Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich,
124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no
legal force or efficacy for any purpose whatever, and what remains must express the
legislative will, independently of the void part, since the court has no power to legislate.
(State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S.,
601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable only in those
provinces in which the respective provincial boards provided for the salaries of probation officers
were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be
enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our
opinion, is inseparably linked with the other portions of the Act that with the elimination of the section
what would be left is the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is to make the
application of the system dependent entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation officers at rates not lower than those
provided for provincial fiscals. Without such action on the part of the various boards, no probation
officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is
divided or subdivided into provinces and it needs no argument to show that if not one of the
provinces — and this is the actual situation now — appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be illusory. There can be no probation without
a probation officer. Neither can there be a probation officer without the probation system.

Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer.
Every probation officer is given, as to the person placed in probation under his care, the powers of
the police officer. It is the duty of the probation officer to see that the conditions which are imposed
by the court upon the probationer under his care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:

That the probationer (a) shall indulge in no injurious or vicious habits;

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 (b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation officers;

(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or
elsewhere;

(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall
remain or reside within a specified place or locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses
caused by his offense;

(g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law.

The court is required to notify the probation officer in writing of the period and terms of probation.
Under section 4, it is only after the period of probation, the submission of a report of the probation
officer and appropriate finding of the court that the probationer has complied with the conditions of
probation that probation may be definitely terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as
reported by the probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an opportunity to be
heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order
the execution of the sentence originally imposed. Section 6 prescribes the duties of probation
officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation
under his supervision a statement of the period and conditions of their probation, and to instruct
them concerning the same; to keep informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by such other measures, not inconsistent
with the conditions imposed by court as may seem most suitable, to bring about improvement in their
conduct and condition; to report in writing to the court having jurisdiction over said probationers at
least once every two months concerning their conduct and condition; to keep records of their work;
make such report as are necessary for the information of the Secretary of Justice and as the latter
may require; and to perform such other duties as are consistent with the functions of the probation
officer and as the court or judge may direct. The probation officers provided for in this Act may act as
parole officers for any penal or reformatory institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."

It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its supervision and
control, a Probation Office under the direction of a Chief Probation Officer to be appointed by
the Governor-General with the advise and consent of the Senate who shall receive a salary
of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out
of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand
pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint

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 probation officers and the administrative personnel of the probation officer under civil service
regulations from among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation
officers and administrative personnel until such positions shall have been included in the
Appropriation Act.

But the probation officers and the administrative personnel referred to in the foregoing section are
clearly not those probation officers required to be appointed for the provinces under section 11. It
may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-
quoted are to act as such, not in the various provinces, but in the central office known as the
Probation Office established in the Department of Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the probation officer" shall investigate and make
reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec.
3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any
reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation
(sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a
particular province. It never could have been intention of the legislature, for instance, to require the
probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a
probation officer in Manila to visit the probationer in the said province of Batanes, to place him under
his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to
perform such other functions as are assigned to him by law.

That under section 10 the Secretary of Justice may appoint as many probation officers as there are
provinces or groups of provinces is, of course possible. But this would be arguing on what the law
may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is.
But much as has been said regarding progressive interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into the law matters and provisions which are not there.
Not for any purpose — not even to save a statute from the doom of invalidity.

Upon the other hand, the clear intention and policy of the law is not to make the Insular Government
defray the salaries of probation officers in the provinces but to make the provinces defray them
should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to
carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation
officers in the central office at Manila. These probation officers are to receive such compensations
as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation
Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of
the probation officers in the provinces or later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other
things, the salaries of the administrative personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the
provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do
not think it is seriously contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a salary not lower than
that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said
act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in
our case there can be a system of probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system. Probation laws have

been enacted, here and in other countries, to permit what modern criminologist call the
"individualization of the punishment", the adjustment of the penalty to the character of the criminal

129
and the circumstances of his particular case. It provides a period of grace in order to aid in the
rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and
their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity
for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United
States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep.,
146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The
benefit to the individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be welcomed, we are
forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental
law.

In arriving at this conclusion, we have endeavored to consider the different aspects presented by
able counsel for both parties, as well in their memorandums as in their oral argument. We have
examined the cases brought to our attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this case. In the examination of the cases and
in then analysis of the legal principles involved we have inclined to adopt the line of action which in
our opinion, is supported better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention, except where the point
or principle is settled directly or by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified because:

(a) The constitutional relations between the Federal and the State governments of the United
States and the dual character of the American Government is a situation which does not
obtain in the Philippines;

(b) The situation of s state of the American Union of the District of Columbia with reference to
the Federal Government of the United States is not the situation of the province with respect
to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the
United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New
York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new
developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX,
No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view
existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding costs. So ordered.

G.R. No. L-29646 November 10, 1978

MAYOR ANTONIO J. VILLEGAS, petitioner,

vs.
HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents.

Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta for petitioner.

130
Sotero H. Laurel for respondents.

FERNANDEZ, J.:

This is a petition for certiorari to review tile decision dated September 17, 1968 of respondent Judge
Francisco Arca of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the
dispositive portion of winch reads.

Wherefore, judgment is hereby rendered in favor of the petitioner and against the
respondents, declaring Ordinance No. 6 37 of the City of Manila null and void. The
preliminary injunction is made permanent. No pronouncement as to cost.

SO ORDERED.

Manila, Philippines, September 17, 1968.

(SGD.)
FRAN
CISCO
ARCA

J
u
d
g
e
1

The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22,
1968 and signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968. 2

City Ordinance No. 6537 is entitled:

AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF

THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO
BE ENGAGED IN ANY KIND OF TRADE, BUSINESS OR OCCUPATION WITHIN
THE CITY OF MANILA WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT
FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES. 3

Section 1 of said Ordinance No. 6537 4 prohibits aliens from being employed or to engage or
participate in any position or occupation or business enumerated therein, whether permanent,
temporary or casual, without first securing an employment permit from the Mayor of Manila and
paying the permit fee of P50.00 except persons employed in the diplomatic or consular missions of
foreign countries, or in the technical assistance programs of both the Philippine Government and any
foreign government, and those working in their respective households, and members of religious
orders or congregations, sect or denomination, who are not paid monetarily or in kind.

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Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six
(6) months or fine of not less than P100.00 but not more than P200.00 or both such fine and
imprisonment, upon conviction. 5

On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho who was employed in Manila, filed a
petition with the Court of First Instance of Manila, Branch I, denominated as Civil Case No. 72797,
praying for the issuance of the writ of preliminary injunction and restraining order to stop the
enforcement of Ordinance No. 6537 as well as for a judgment declaring said Ordinance No. 6537
null and void. 6

In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the
ordinance declared null and void:

1) As a revenue measure imposed on aliens employed in the City of Manila,

Ordinance No. 6537 is discriminatory and violative of the rule of the uniformity in
taxation;

2) As a police power measure, it makes no distinction between useful and non-useful

occupations, imposing a fixed P50.00 employment permit, which is out of proportion
to the cost of registration and that it fails to prescribe any standard to guide and/or
limit the action of the Mayor, thus, violating the fundamental principle on illegal
delegation of legislative powers:

3) It is arbitrary, oppressive and unreasonable, being applied only to aliens who are
thus, deprived of their rights to life, liberty and property and therefore, violates the
due process and equal protection clauses of the Constitution.7

On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17,
1968 rendered judgment declaring Ordinance No. 6537 null and void and making permanent the writ
of preliminary injunction. 8

Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the
present petition on March 27, 1969. Petitioner assigned the following as errors allegedly committed
by respondent Judge in the latter's decision of September 17,1968: 9

THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF

LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE
OF UNIFORMITY OF TAXATION.

II

RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR

OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE
AGAINST UNDUE DESIGNATION OF LEGISLATIVE POWER.

III

132
 RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT
ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTION.

Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the
ground that it violated the rule on uniformity of taxation because the rule on uniformity of taxation
applies only to purely tax or revenue measures and that Ordinance No. 6537 is not a tax or revenue
measure but is an exercise of the police power of the state, it being principally a regulatory measure
in nature.

The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal
purpose is regulatory in nature has no merit. While it is true that the first part which requires that the
alien shall secure an employment permit from the Mayor involves the exercise of discretion and
judgment in the processing and approval or disapproval of applications for employment permits and
therefore is regulatory in character the second part which requires the payment of P50.00 as
employee's fee is not regulatory but a revenue measure. There is no logic or justification in exacting
P50.00 from aliens who have been cleared for employment. It is obvious that the purpose of the
ordinance is to raise money under the guise of regulation.

The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid
substantial differences in situation among individual aliens who are required to pay it. Although the
equal protection clause of the Constitution does not forbid classification, it is imperative that the
classification should be based on real and substantial differences having a reasonable relation to the
subject of the particular legislation. The same amount of P50.00 is being collected from every
employed alien whether he is casual or permanent, part time or full time or whether he is a lowly
employee or a highly paid executive

Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise
of his discretion. It has been held that where an ordinance of a municipality fails to state any policy
or to set up any standard to guide or limit the mayor's action, expresses no purpose to be attained by
requiring a permit, enumerates no conditions for its grant or refusal, and entirely lacks standard, thus
conferring upon the Mayor arbitrary and unrestricted power to grant or deny the issuance of building
permits, such ordinance is invalid, being an undefined and unlimited delegation of power to allow or
prevent an activity per se lawful. 10

In Chinese Flour Importers Association vs. Price Stabilization Board, 11 where a law granted a
government agency power to determine the allocation of wheat flour among importers, the Supreme
Court ruled against the interpretation of uncontrolled power as it vested in the administrative officer
an arbitrary discretion to be exercised without a policy, rule, or standard from which it can be
measured or controlled.

It was also held in Primicias vs. Fugoso 12 that the authority and discretion to grant and refuse
permits of all classes conferred upon the Mayor of Manila by the Revised Charter of Manila is not
uncontrolled discretion but legal discretion to be exercised within the limits of the law.

Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide
the mayor in the exercise of the power which has been granted to him by the ordinance.

The ordinance in question violates the due process of law and equal protection rule of the
Constitution.

133
Requiring a person before he can be employed to get a permit from the City Mayor of Manila who
may withhold or refuse it at will is tantamount to denying him the basic right of the people in the
Philippines to engage in a means of livelihood. While it is true that the Philippines as a State is not
obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life
without due process of law. This guarantee includes the means of livelihood. The shelter of
protection under the due process and equal protection clause is given to all persons, both aliens and
citizens. 13

The trial court did not commit the errors assigned.

WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs.

G.R. No. L-45987 May 5, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CAYAT, defendant-appellant.

Sinai Hamada y Cariño for appellant.

Office of the Solicitor-General Tuason for appellee.

MORAN, J.:

Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the accused, Cayat, a native of Baguio,
Benguet, Mountain Province, was sentenced by the justice of the peace court of Baguio to pay a fine
of five pesos (P5) or suffer subsidiary imprisonment in case of insolvency. On appeal of the Court of
First Instance, the following information was filed against him:

That on or about the 25th day of January, 1937, in the City of Baguio, Commonwealth of the
Philippines, and within the jurisdiction of this court, the above-named accused, Cayat, being
a member of the non-Christian tribes, did then and there willfully, unlawfully, and illegally
receive, acquire, and have in his possession and under his control or custody, one bottle of
A-1-1 gin, an intoxicating liquor, other than the so-called native wines and liquors which the
members of such tribes have been accustomed themselves to make prior to the passage of
Act No. 1639.

Accused interposed a demurrer which was overruled. At the trial, he admitted all the facts alleged in
the information, but pleaded not guilty to the charge for the reasons adduced in his demurrer and
submitted the case on the pleadings. The trial court found him guilty of the crime charged and
sentenced him to pay a fine of fifty pesos (P50) or supper subsidiary imprisonment in case of
insolvency. The case is now before this court on appeal. Sections 2 and 3 of Act No. 1639 read:

SEC. 2. It shall be unlawful for any native of the Philippine Islands who is a member of a
non-Christian tribe within the meaning of the Act Numbered Thirteen hundred and ninety-
seven, to buy, receive, have in his possession, or drink any ardent spirits, ale, beer, wine, or
intoxicating liquors of any kind, other than the so-called native wines and liquors which the
members of such tribes have been accustomed themselves to make prior to the passage of
this Act, except as provided in section one hereof; and it shall be the duty of any police
officer or other duly authorized agent of the Insular or any provincial, municipal or township

134
 government to seize and forthwith destroy any such liquors found unlawfully in the
possession of any member of a non-Christian tribe.

SEC. 3. Any person violating the provisions of section one or section two of this Act shall,
upon conviction thereof, be punishable for each offense by a fine of not exceeding two
hundred pesos or by imprisonment for a term not exceeding six months, in the discretion of
the court.

The accused challenges the constitutionality of the Act on the following grounds:

(1) That it is discriminatory and denies the equal protection of the laws;

(2) That it is violative of the due process clause of the Constitution: and.

(3) That it is improper exercise of the police power of the state.

Counsel for the appellant holds out his brief as the "brief for the non-Christian tribes." It is said that
as these less civilized elements of the Filipino population are "jealous of their rights in a democracy,"
any attempt to treat them with discrimination or "mark them as inferior or less capable rate or less
entitled" will meet with their instant challenge. As the constitutionality of the Act here involved is
questioned for purposes thus mentioned, it becomes imperative to examine and resolve the issues
raised in the light of the policy of the government towards the non-Christian tribes adopted and
consistently followed from the Spanish times to the present, more often with sacrifice and tribulation
but always with conscience and humanity.

As early as 1551, the Spanish Government had assumed an unvarying solicitous attitude toward
these inhabitants, and in the different laws of the Indies, their concentration in so-called
"reducciones" (communities) have been persistently attempted with the end in view of according
them the "spiritual and temporal benefits" of civilized life. Throughout the Spanish regime, it had
been regarded by the Spanish Government as a sacred "duty to conscience and humanity" to civilize
these less fortunate people living "in the obscurity of ignorance" and to accord them the "the moral
and material advantages" of community life and the "protection and vigilance afforded them by the
same laws." (Decree of the Governor-General of the Philippines, Jan. 14, 1887.) This policy had not
been deflected from during the American period. President McKinley in his instructions to the
Philippine Commission of April 7, 1900, said:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to
maintain their tribal organization and government, and under which many of those tribes are
now living in peace and contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal government should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs.

Since then and up to the present, the government has been constantly vexed with the problem of
determining "those practicable means of bringing about their advancement in civilization and
material prosperity." (See, Act No. 253.) "Placed in an alternative of either letting them alone or
guiding them in the path of civilization," the present government "has chosen to adopt the latter
measure as one more in accord with humanity and with the national conscience." (Memorandum of
Secretary of the Interior, quoted in Rubi vs. Provincial Board of Mindoro, 39 Phil., 660, 714.) To this
end, their homes and firesides have been brought in contact with civilized communities through a
network of highways and communications; the benefits of public education have to them been

135
extended; and more lately, even the right of suffrage. And to complement this policy of attraction and
assimilation, the Legislature has passed Act No. 1639 undoubtedly to secure for them the blessings
of peace and harmony; to facilitate, and not to mar, their rapid and steady march to civilization and
culture. It is, therefore, in this light that the Act must be understood and applied.

It is an established principle of constitutional law that the guaranty of the equal protection of the laws
is not equal protection of the laws is not violated by a legislation based on reasonable classification.
And the classification, to be reasonable, (1) must rest on substantial distinctions; (2) must be
germane to the purposes of the law; (3) must not be limited to existing conditions only; and (4) must
apply equally to all members of the same class. (Borgnis vs. Falk Co., 133 N.W., 209;
Lindsley vs. Natural Carbonic Gas Co., 220 U.S. 61; 55 Law. ed., Rubi vs. Provincial Board of
Mindoro, 39 Phil., 660; People and Hongkong & Shanghai Banking Corporation vs. Vera and Cu
Unjieng, 37 Off. Gaz ., 187.)

Act No. 1639 satisfies these requirements. The classification rests on real and substantial, not
merely imaginary or whimsical, distinctions. It is not based upon "accident of birth or parentage," as
counsel to the appellant asserts, but upon the degree of civilization and culture. "The term 'non-
Christian tribes' refers, not to religious belief, but, in a way, to the geographical area, and, more
directly, to natives of the Philippine Islands of a low grade of civilization, usually living in tribal
relationship apart from settled communities." (Rubi vs. Provincial Board of Mindoro, supra.) This
distinction is unquestionably reasonable, for the Act was intended to meet the peculiar conditions
existing in the non-Christian tribes. The exceptional cases of certain members thereof who at
present have reached a position of cultural equality with their Christian brothers, cannot affect the
reasonableness of the classification thus established.

That it is germane to the purposes of law cannot be doubted. The prohibition "to buy, receive, have
in his possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind, other
than the so-called native wines and liquors which the members of such tribes have been
accustomed themselves to make prior to the passage of this Act.," is unquestionably designed to
insure peace and order in and among the non-Christian tribes. It has been the sad experience of the
past, as the observations of the lower court disclose, that the free use of highly intoxicating liquors
by the non-Christian tribes have often resulted in lawlessness and crimes, thereby hampering the
efforts of the government to raise their standard of life and civilization.

The law is not limited in its application to conditions existing at the time of its enactment. It is
intended to apply for all times as long as those conditions exist. The Act was not predicated, as
counsel for appellant asserts, upon the assumption that the non-Christians are "impermeable to any
civilizing influence." On the contrary, the Legislature understood that the civilization of a people is a
slow process and that hand in hand with it must go measures of protection and security.

Finally, that the Act applies equally to all members of the class is evident from a perusal thereof.
That it may be unfair in its operation against a certain number non-Christians by reason of their
degree of culture, is not an argument against the equality of its application.

Appellants contends that that provision of the law empowering any police officer or other duly
authorized agent of the government to seize and forthwith destroy any prohibited liquors found
unlawfully in the possession of any member of the non-Christian tribes is violative of the due process
of law provided in the Constitution. But this provision is not involved in the case at bar. Besides, to
constitute due process of law, notice and hearing are not always necessary. This rule is especially
true where much must be left to the discretion of the administrative officials in applying a law to
particular cases. (McGehee, Due Process of Law p. 371, cited with approval in Rubi vs.Provincial
Board of Mindoro, supra.) Due process of law means simply: (1) that there shall be a law prescribed

136
in harmony with the general powers of the legislative department of the government; (2) that it shall
be reasonable in its operation; (3) that it shall be enforced according to the regular methods of
procedure prescribed; and (4) that it shall be applicable alike to all citizens of the state or to all of the
class. (U.S. vs. Ling Su Fan, 10 Phil., 104, affirmed on appeal by the United States Supreme Court,
218 U.S., 302: 54 Law. ed., 1049.) Thus, a person's property may be seized by the government in
payment of taxes without judicial hearing; or property used in violation of law may be confiscated
(U.S. vs. Surla, 20 Phil., 163, 167), or when the property constitutes corpus delicti, as in the instant
case (Moreno vs. Ago Chi, 12 Phil., 439, 442).

Neither is the Act an improper exercise of the police power of the state. It has been said that the
police power is the most insistent and least limitable of all powers of the government. It has been
aptly described as a power co-extensive with self-protection and constitutes the law of overruling
necessity. Any measure intended to promote the health, peace, morals, education and good order of
the people or to increase the industries of the state, develop its resources and add to its wealth and
prosperity (Barbier vs. Connolly, 113 U.S., 27), is a legitimate exercise of the police power, unless
shown to be whimsical or capricious as to unduly interfere with the rights of an individual, the same
must be upheld.

Act No. 1639, as above stated, is designed to promote peace and order in the non-Christian tribes
so as to remove all obstacles to their moral and intellectual growth and, eventually, to hasten their
equalization and unification with the rest of their Christian brothers. Its ultimate purpose can be no
other than to unify the Filipino people with a view to a greater Philippines.

The law, then, does not seek to mark the non-Christian tribes as "an inferior or less capable race."
On the contrary, all measures thus far adopted in the promotion of the public policy towards them
rest upon a recognition of their inherent right to equality in tht enjoyment of those privileges now
enjoyed by their Christian brothers. But as there can be no true equality before the law, if there is, in
fact, no equality in education, the government has endeavored, by appropriate measures, to raise
their culture and civilization and secure for them the benefits of their progress, with the ultimate end
in view of placing them with their Christian brothers on the basis of true equality. It is indeed
gratifying that the non-Christian tribes "far from retrograding, are definitely asserting themselves in a
competitive world," as appellant's attorney impressively avers, and that they are "a virile, up-and -
coming people eager to take their place in the world's social scheme." As a matter of fact, there are
now lawyers, doctors and other professionals educated in the best institutions here and in America.
Their active participation in the multifarious welfare activities of community life or in the delicate
duties of government is certainly a source of pride and gratification to people of the Philippines. But
whether conditions have so changed as to warrant a partial or complete abrogation of the law, is a
matter which rests exclusively within the prerogative of the National Assembly to determine. In the
constitutional scheme of our government, this court can go no farther than to inquire whether the
Legislature had the power to enact the law. If the power exists, and we hold it does exist, the wisdom
of the policy adopted, and the adequacy under existing conditions of the measures enacted to
forward it, are matters which this court has no authority to pass upon. And, if in the application of the
law, the educated non-Christians shall incidentally suffer, the justification still exists in the all-
comprehending principle of salus populi suprema est lex. When the public safety or the public
morals require the discontinuance of a certain practice by certain class of persons, the hand of the
Legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience
which some members of the class may suffer. The private interests of such members must yield to
the paramount interests of the nation (Cf. Boston Beer Co. vs. Mass., 97 U.S., 25; 24 law. ed., 989).

G.R. No. L-52245 January 22, 1980

137
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

Raul M. Gonzales for petitioners

Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J:

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by
petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin
respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas
Pambansa Big. 51, 52, and 53 for being unconstitutional.

The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who
has filed his certificate of candidacy for said position of Governor in the forthcoming elections of
January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the
Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel,
Iloilo.

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52
as discriminatory and contrary to the equal protection and due process guarantees of the
Constitution. Said Section 4 provides:

Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of

the Constitution and disqualification mentioned in existing laws, which are hereby
declared as disqualification for any of the elective officials enumerated in section 1
hereof.

Any retired elective provincial city or municipal official who has received payment of
the retirement benefits to which he is entitled under the law, and who shall have been
6,5 years of age at the commencement of the term of office to which he seeks to be
elected shall not be qualified to run for the same elective local office from which he
has retired (Emphasis supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that
the classification provided therein is based on "purely arbitrary grounds and, therefore, class
legislation."

For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory
provisions:

Sec 7. Terms of Office — Unless sooner removed for cause, all local elective officials
hereinabove mentioned shall hold office for a term of six (6) years, which shall
commence on the first Monday of March 1980.

.... (Batas Pambansa Blg. 51) Sec. 4.

138
 Sec. 4. ...

Any person who has committed any act of disloyalty to the State, including acts
amounting to subversion, insurrection, rebellion or other similar crimes, shall not be
qualified to be a candidate for any of the offices covered by this Act, or to participate
in any partisan political activity therein:

provided that a judgment of conviction for any of the aforementioned crimes shall be
conclusive evidence of such fact and

the filing of charges for the commission of such crimes before a civil court or military
tribunal after preliminary investigation shall be prima fascie evidence of such fact.

... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).

Section 1. Election of certain Local Officials — ... The election shall be held on
January 30, 1980. (Batas Pambansa, Blg. 52)

Section 6. Election and Campaign Period — The election period shall be fixed by the
Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution.
The period of campaign shall commence on December 29, 1979 and terminate on
January 28, 1980. (ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa
Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides
that a "bona fide candidate for any public office shall be it. from any form of harassment and
discrimination. "The question of accreditation will not be taken up in this case but in that of Bacalso,
et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised,

Petitioners then pray that the statutory provisions they have challenged be declared null and void for
being violative of the Constitution.

I . The procedural Aspect

At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions.
Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does
not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao
in his. The respectively contest completely different statutory provisions. Petitioner Dumlao has
joined this suit in his individual capacity as a candidate. The action of petitioners Igot and
Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead nine constraints as
the reason of their joint Petition, it would have required only a modicum more of effort tor petitioner
Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to have filed separate suits,
in the interest of orderly procedure.

For another, there are standards that have to be followed inthe exercise of the function of judicial
review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by
the party raising the constitutional question: (3) the plea that the function be exercised at the earliest
opportunity and (4) the necessity that the constiutional question be passed upon in order to decide
the case (People vs. Vera 65 Phil. 56 [1937]).

139
It may be conceded that the third requisite has been complied with, which is, that the parties have
raised the issue of constitutionality early enough in their pleadings.

This Petition, however, has fallen far short of the other three criteria.

A. Actual case and controversy.

It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.

Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa
Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the
Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet,
Dumlao has not been adversely affected by the application of that provision. No petition seeking
Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that
constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a
question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion
from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's
case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando
in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section
2, Art. XII-C, for the Constitution the pertinent portion of which reads:

"Section 2. The Commission on Elections shall have the following power and functions:

1) xxx

2) Be the sole judge of all contests relating to the elections, returns

and qualifications of all members of the National Assembly and elective provincial
and city officials. (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:

Section 11. Any decision, order, or ruling of the Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from his receipt
of a copy thereof.

B. Proper party.

The long-standing rule has been that "the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury
as a result of its enforcement" (People vs. Vera, supra).

In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition,
that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has
been convicted nor charged with acts of disloyalty to the State, nor disqualified from being
candidates for local elective positions. Neither one of them has been calle ed to have been
adversely affected by the operation of the statutory provisions they assail as unconstitutional Theirs
is a generated grievance. They have no personal nor substantial interest at stake. In the absence of
any litigate interest, they can claim no locus standi in seeking judicial redress.

140
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that
the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary
of Public Works (110 Phil. 331 [1960], thus:

... it is well settled that the validity of a statute may be contested only by one who will
sustain a direct injury in consequence of its enforcement. Yet, there are many
decisions nullifying at the instance of taxpayers, laws providing for the disbursement
of public funds, upon the theory that "the expenditure of public funds, by an officer of
the State for the purpose of administering an unconstitutional act constitutes a
misapplication of such funds," which may be enjoined at the request of a taxpayer.

In the same vein, it has been held:

In the determination of the degree of interest essential to give the requisite standing
to attack the constitutionality of a statute, the general rule is that not only persons
individually affected, but also taxpayers have sufficient interest in preventing the
illegal expenditure of moneys raised by taxation and they may, therefore, question
the constitutionality of statutes requiring expenditure of public moneys. (Philippine
Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections
4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly,
the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in violation of specific
constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]),
or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary
of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper
purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18
SCRA 300 [1966]), citingPhilippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]).
Besides, the institution of a taxpayer's suit, per se is no assurance of judicial review. As held by this
Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this
Court is vested with discretion as to whether or not a taxpayer's suit should be entertained.

C. Unavoidability of constitutional question.

Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act
of the legislature will not be determined by the courts unless that question is properly raised and
presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented."

We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the necessity for resolving the issue of
constitutionality is absent, and procedural regularity would require that this suit be dismissed.

II. The substantive viewpoint.

We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not
being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was
relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases

141
having been penned by our present Chief Justice. The reasons which have impelled us are the
paramount public interest involved and the proximity of the elections which will be held only a few
days hence.

Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is
belied by the fact that several petitions for the disqualification of other candidates for local positions
based on the challenged provision have already been filed with the COMELEC (as listed in p. 15,
respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful
discrimination.

The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither
well taken. The constitutional guarantee of equal protection of the laws is subject to rational
classification. If the groupings are based on reasonable and real differentiations, one class can be
treated and regulated differently from another class. For purposes of public service, employees 65
years of age, have been validly classified differently from younger employees. Employees attaining
that age are subject to compulsory retirement, while those of younger ages are not so compulsorily
retirable.

In respect of election to provincial, city, or municipal positions, to require that candidates should not
be more than 65 years of age at the time they assume office, if applicable to everyone, might or
might not be a reasonable classification although, as the Solicitor General has intimated, a good
policy of the law would be to promote the emergence of younger blood in our political elective
echelons. On the other hand, it might be that persons more than 65 years old may also be good
elective local officials.

Coming now to the case of retirees. Retirement from government service may or may not be a
reasonable disqualification for elective local officials. For one thing, there can also be retirees from
government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged
65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree.

But, in the case of a 65-year old elective local official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him from running for the same office from which he had
retired, as provided for in the challenged provision. The need for new blood assumes relevance. The
tiredness of the retiree for government work is present, and what is emphatically significant is that
the retired employee has already declared himself tired and unavailable for the same government
work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very
reason that inequality will neither result from the application of the challenged provision. Just as that
provision does not deny equal protection neither does it permit of such denial (see People vs. Vera,
65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated.

In fine, it bears reiteration that the equal protection clause does not forbid all legal classification.
What is proscribes is a classification which is arbitrary and unreasonable. That constitutional
guarantee is not violated by a reasonable classification based upon substantial distinctions, where
the classification is germane to the purpose of the law and applies to all Chose belonging to the
same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966];
Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc.,
et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question being pursuant to that purpose, it
cannot be considered invalid "even it at times, it may be susceptible to the objection that it is marred
by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines, 1977
ed., p. 547).

142
There is an additional consideration. Absent herein is a showing of the clear invalidity of the
questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be
a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are
practically unanimous in the pronouncement that laws shall not be declared invalid unless the
conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55
[1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56).
Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires
to become a candidate for office provided they are reasonable, as in this case.

In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of
Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two
parts. The first provides:

a. judgment of conviction jor any of the aforementioned crimes shall be conclusive

evidence of such fact ...

The supremacy of the Constitution stands out as the cardinal principle. We are aware of the
presumption of validity that attaches to a challenged statute, of the well-settled principle that "all
reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set aside
a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are
constrained to hold that this is one such clear case.

Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and
counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law,
is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of
innocence, as a candidate is disqualified from running for public office on the ground alone that
charges have been filed against him before a civil or military tribunal. It condemns before one is fully
heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person
convicted of acts of dislotalty and one against whom charges have been filed for such acts, as both
of them would be ineligible to run for public office. A person disqualified to run for public office on the
ground that charges have been filed against him is virtually placed in the same category as a person
already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of
suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code).

And although the filing of charges is considered as but prima facie evidence, and therefore, may be
rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time
constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome
the prima facie evidence against him.

Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts
rather than before an administrative body such as the COMELEC. A highly possible conflict of
findings between two government bodies, to the extreme detriment of a person charged, will thereby
be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to
be substituted for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable
portion is mandated. It is separable from the first portion of the second paragraph of section 4 of
Batas Pambansa Big. 52 which can stand by itself.

WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared
valid. Said paragraph reads:

143
 SEC. 4. Special disqualification. — In addition to violation of Section 10 of Article
XII(C) of the Constitution and disqualifications mentioned in existing laws which are
hereby declared as disqualification for any of the elective officials enumerated in
Section 1 hereof, any retired elective provincial, city or municipal official, who has
received payment of the retirement benefits to which he is entitled under the law and
who shall have been 65 years of age at the commencement of the term of office to
which he seeks to be elected, shall not be qualified to run for the same elective local
office from which he has retired.

2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52

providing that "... the filing of charges for the commission of such crimes before a civil
court or military tribunal after preliminary investigation shall be prima facie evidence
of such fact", is hereby declared null and void, for being violative of the constitutional
presumption of innocence guaranteed to an accused.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is
more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph
2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to
certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No.
4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court,
penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial
review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading
cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this
Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least,
that counsel of private parties in not a few cases in the recent past had shown less than full
awareness of the doctrines, procedural in character, that call for application whenever the exercise
of this awesome and delicate responsibility of adjudging the validity of a statute or presidential
decree is invoked. 3While this Court cannot be accused of being bound by the letters of judicial
timidity, it remains true that no cavalier disregard of tried and tested concepts should be given
encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies

144
deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate
rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the
reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There
are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this
character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be
complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the
exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper
that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary
precepts. Necessarily then, whenever objections based on refusal to abide by the procedural
principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for
non-observance of the controlling doctrines. There are times, however, when the controversy is of
such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional
limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the
opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not
be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass
on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based
on the equal protection guarantee, and on the fundamental concept of fairness of which the due
process clause is an embodiment, thus calling for the nullification of the disqualification of a
candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known fact
in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely
to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva
Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein
petitioner because every condition imposed as disqualification grounds are known to be possessed
by him because he was a former elective provincial official who has received his retirement benefits,
he desires to run for the same elective office and at the commencement of the term of office to which
he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for
invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner,
it amounted to a constitutional infirmity fatal in character. The weakness of the petition is thus
apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to
extend unduly the concept of judicial review if a court can roam far and wide and range at will over
the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for
or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof
if duly enacted that is decisive. That would be the test for its validity or lack of it. There is this
relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the
United States] from the beginning lend no support whatever to the assumption that the judiciary may
restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has
caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United
States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading
Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under
well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of
Congressmen said about it. What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to
eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which
Congress had the undoubted power to enact and which could be reenacted in its exact form if the
same or another legislator made a 'wiser' speech about it." 8

145
2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of
equal protection, then his plea for nullification should be accorded a sympathetic response. As the
opinion of the Court makes clear, such imputation is not deserving of credence. The classification
cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact
of retirement and the receipt of retirement benefits are factors that can enter into any legislative
determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v.
Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all
persons under similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism
and undue preference cannot be allowed. For the principle is that equal protection and security shall
be given to every person under circumstances, which if not Identical, are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be
denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most
that can be said is that he falls within the-proscribed class. The point was likewise raised as to why
should national officials be excluded in the above provision. The answer is simple. There is nothing
to prevent the legislative body from following a system of priorities. This it did under the challenged
legislative provision. In its opinion, what called for such a measure is the propensity of the local
officials having reached the retirement age and having received retirement benefits once again
running for public office. Accordingly, the provision in question was enacted. A portion of the opinion
in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that
caned for correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to
the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of all
"or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and
unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a
civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact
and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the
constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-
founded. Such being the case, I am in full agreement. I would add that such a provision is moreover
tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional
right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be
dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of
the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the
opinion of the Court, the time element may invariably preclude a full hearing on the charge against
him and thus effectively negate the opportunity of an individual to present himself as a candidate. If,
as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled
as he is with so many complaints filed on his desk would give in to the all-too-human propensity to
take the easy way out and to file charges, then a candidate Would be hard put to destroy the
presumption. A sense of realism for me compels a declaration of nullity of a provision which on its
face is patently offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

146
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to
rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory and
arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of governor of
his home province of Nueva Vizcaya and would in effect bar the electors of his province from
electing him to said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of age at the commencement of the term of
office to which he seeks to be elected."

To specially and peculiarly ban a 65-year old previously retired elective local official from running for
the same elective office (of governor, in this case) previously held by him and from which he has
retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated,
e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the
disqualification is for the retiree of 65 to run for the same elective office from which he retired) but
petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and
are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is
this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision
was concocted and designed precisely to frustrate any bid of petition to make a political comeback
as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by
virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the
cardinal constitutional guarantee that equal protection and security shall be given under the law to
every person, under analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is
"to infuse new blood in local governments but the classification (that would bar 65-year old retirees
from running for the same elective local office) is not rational nor reasonable. It is not germane nor
relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may
continue in local governments since they are not disqualified at all to run for any other local elective
office such as from provincial governor, vice-governor, city, municipal or district mayor and vice-
mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang
Bayan, other than the local elective office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of
government are not in any manner disqualified to run for any local elective office, as in the case of
retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full
substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is
running as the official KBL candidate for governor of his province. And even in the case of 65-year
old local elective officials, they are disqualified only when they have received payment of the
retirement benefits to which they are entitled under the law (which amount to very little, compared to
retirement benefits of other executive officials and members of the judiciary). If they have not
received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-
disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an
irrelevant question of whether or not they have received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial distinctions
which make for real differences that would justify the special disqualification of petitioner, which, it is
claimed, "is based on a presumption that elective local officials who have retired and are of
advanced age cannot discharge the functions of the office they seek as those who are differently

147
situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or
has "young or new blood" does not mean that he would be more efficient, effective and competent
than a mature 65year old like petition er who has had experience on the job and who was observed
at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the
incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as
a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age
and has been hailed by the President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the
most, a minimum age to hold public office has been required as a qualification to
insure a modicum of maturity 'now reduced to 21 years in the present batas), but no
maximum age has ever been imposed as a disqualification for elect public office
since the right and win of the people to elect the candidate of their choice for any
elective office, no matter his age has always been recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like circumstances
and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is
meant to proscribe undue favor and individual or class privilege on the one hand and hostile
discrimination and the oppression of in quality on the other. The questioned provision should
therefore at the least be declared invalid in its application insofar as it would disqualify petitioner
from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where
no valid distinction could be made as to the relevant conditions that call for consideration, there
should be none as to the privileges conferred and the liabilities imposed. There can be no undue
favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination
against persons in thus ruled out. For the principle is that equal protection and security shall be
given to every person under circumstances, which if not Identical are analogous. If law be looked
upon in terms of burden or charges, those that full within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section
9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any
form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary
investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the
part of the candidate and disqualify him from his candidacy. Such a provision could be the most
insidious weapon to disqualify bona fide candidates who seem to be headed for election and places
in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off
any candidate who may not be to their filing through the filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment of
conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of
his disqualification from office, such judgment of conviction must be final and unappealable. This is
so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned
provision would deny the bona fide candidate substantive due process and would be grossly
violative of his constitutional right of presumption of innocence and of the above-quoted provision of

148
the 1973 Constitution protecting candidates for public office from any form of harassment and
discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a majority in
favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in
view of the urgency of the matter and the evil sought to be avoided. However, as of this writing,
January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the
action to nullify such second paragraph of section 4 of the Batas in question is premature and has
not been properly submitted for ajudication under the strict procedural require . If this be the case,
my above views, termed as concurrences, should be taken as dissents against the majority action.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is
more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph
2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to
certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No.
4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court,
penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial
review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading
cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this
Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least,
that counsel of private parties in not a few cases in the recent past had shown less than full
awareness of the doctrines, procedural in character, that call for application whenever the exercise
of this awesome and delicate responsibility of adjudging the validity of a statute or presidential
decree is invoked. 3While this Court cannot be accused of being bound by the letters of judicial
timidity, it remains true that no cavalier disregard of tried and tested concepts should be given
encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies
deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate

149
rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the
reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There
are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this
character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be
complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the
exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper
that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary
precepts. Necessarily then, whenever objections based on refusal to abide by the procedural
principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for
non-observance of the controlling doctrines. There are times, however, when the controversy is of
such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional
limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the
opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not
be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass
on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based
on the equal protection guarantee, and on the fundamental concept of fairness of which the due
process clause is an embodiment, thus calling for the nullification of the disqualification of a
candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known fact
in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely
to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva
Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein
petitioner because every condition imposed as disqualification grounds are known to be possessed
by him because he was a former elective provincial official who has received his retirement benefits,
he desires to run for the same elective office and at the commencement of the term of office to which
he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for
invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner,
it amounted to a constitutional infirmity fatal in character. The weakness of the petition is thus
apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to
extend unduly the concept of judicial review if a court can roam far and wide and range at will over
the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for
or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof
if duly enacted that is decisive. That would be the test for its validity or lack of it. There is this
relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the
United States] from the beginning lend no support whatever to the assumption that the judiciary may
restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has
caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United
States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading
Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under
well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of
Congressmen said about it. What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to
eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which
Congress had the undoubted power to enact and which could be reenacted in its exact form if the
same or another legislator made a 'wiser' speech about it." 8

150
2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of
equal protection, then his plea for nullification should be accorded a sympathetic response. As the
opinion of the Court makes clear, such imputation is not deserving of credence. The classification
cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact
of retirement and the receipt of retirement benefits are factors that can enter into any legislative
determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v.
Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all
persons under similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism
and undue preference cannot be allowed. For the principle is that equal protection and security shall
be given to every person under circumstances, which if not Identical, are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be
denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most
that can be said is that he falls within the-proscribed class. The point was likewise raised as to why
should national officials be excluded in the above provision. The answer is simple. There is nothing
to prevent the legislative body from following a system of priorities. This it did under the challenged
legislative provision. In its opinion, what called for such a measure is the propensity of the local
officials having reached the retirement age and having received retirement benefits once again
running for public office. Accordingly, the provision in question was enacted. A portion of the opinion
in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that
caned for correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to
the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of all
"or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and
unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a
civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact
and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the
constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-
founded. Such being the case, I am in full agreement. I would add that such a provision is moreover
tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional
right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be
dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of
the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the
opinion of the Court, the time element may invariably preclude a full hearing on the charge against
him and thus effectively negate the opportunity of an individual to present himself as a candidate. If,
as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled
as he is with so many complaints filed on his desk would give in to the all-too-human propensity to
take the easy way out and to file charges, then a candidate Would be hard put to destroy the
presumption. A sense of realism for me compels a declaration of nullity of a provision which on its
face is patently offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

151
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to
rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory and
arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of governor of
his home province of Nueva Vizcaya and would in effect bar the electors of his province from
electing him to said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of age at the commencement of the term of
office to which he seeks to be elected."

To specially and peculiarly ban a 65-year old previously retired elective local official from running for
the same elective office (of governor, in this case) previously held by him and from which he has
retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated,
e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the
disqualification is for the retiree of 65 to run for the same elective office from which he retired) but
petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and
are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is
this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision
was concocted and designed precisely to frustrate any bid of petition to make a political comeback
as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by
virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the
cardinal constitutional guarantee that equal protection and security shall be given under the law to
every person, under analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is
"to infuse new blood in local governments but the classification (that would bar 65-year old retirees
from running for the same elective local office) is not rational nor reasonable. It is not germane nor
relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may
continue in local governments since they are not disqualified at all to run for any other local elective
office such as from provincial governor, vice-governor, city, municipal or district mayor and vice-
mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang
Bayan, other than the local elective office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of
government are not in any manner disqualified to run for any local elective office, as in the case of
retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full
substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is
running as the official KBL candidate for governor of his province. And even in the case of 65-year
old local elective officials, they are disqualified only when they have received payment of the
retirement benefits to which they are entitled under the law (which amount to very little, compared to
retirement benefits of other executive officials and members of the judiciary). If they have not
received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-
disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an
irrelevant question of whether or not they have received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial distinctions
which make for real differences that would justify the special disqualification of petitioner, which, it is
claimed, "is based on a presumption that elective local officials who have retired and are of
advanced age cannot discharge the functions of the office they seek as those who are differently

152
situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or
has "young or new blood" does not mean that he would be more efficient, effective and competent
than a mature 65year old like petition er who has had experience on the job and who was observed
at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the
incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as
a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age
and has been hailed by the President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the
most, a minimum age to hold public office has been required as a qualification to
insure a modicum of maturity 'now reduced to 21 years in the present batas), but no
maximum age has ever been imposed as a disqualification for elect public office
since the right and win of the people to elect the candidate of their choice for any
elective office, no matter his age has always been recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like circumstances
and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is
meant to proscribe undue favor and individual or class privilege on the one hand and hostile
discrimination and the oppression of in quality on the other. The questioned provision should
therefore at the least be declared invalid in its application insofar as it would disqualify petitioner
from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where
no valid distinction could be made as to the relevant conditions that call for consideration, there
should be none as to the privileges conferred and the liabilities imposed. There can be no undue
favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination
against persons in thus ruled out. For the principle is that equal protection and security shall be
given to every person under circumstances, which if not Identical are analogous. If law be looked
upon in terms of burden or charges, those that full within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section
9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any
form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary
investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the
part of the candidate and disqualify him from his candidacy. Such a provision could be the most
insidious weapon to disqualify bona fide candidates who seem to be headed for election and places
in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off
any candidate who may not be to their filing through the filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment of
conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of
his disqualification from office, such judgment of conviction must be final and unappealable. This is
so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned
provision would deny the bona fide candidate substantive due process and would be grossly
violative of his constitutional right of presumption of innocence and of the above-quoted provision of

153
the 1973 Constitution protecting candidates for public office from any form of harassment and
discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a majority in
favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in
view of the urgency of the matter and the evil sought to be avoided. However, as of this writing,
January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the
action to nullify such second paragraph of section 4 of the Batas in question is premature and has
not been properly submitted for ajudication under the strict procedural require . If this be the case,
my above views, termed as concurrences, should be taken as dissents against the majority action.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is
more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph
2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to
certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No.
4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court,
penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial
review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading
cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this
Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least,
that counsel of private parties in not a few cases in the recent past had shown less than full
awareness of the doctrines, procedural in character, that call for application whenever the exercise
of this awesome and delicate responsibility of adjudging the validity of a statute or presidential
decree is invoked. 3While this Court cannot be accused of being bound by the letters of judicial
timidity, it remains true that no cavalier disregard of tried and tested concepts should be given
encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies
deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate
rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the
reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There
are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this

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character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be
complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the
exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper
that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary
precepts. Necessarily then, whenever objections based on refusal to abide by the procedural
principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for
non-observance of the controlling doctrines. There are times, however, when the controversy is of
such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional
limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the
opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not
be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass
on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based
on the equal protection guarantee, and on the fundamental concept of fairness of which the due
process clause is an embodiment, thus calling for the nullification of the disqualification of a
candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known fact
in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely
to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva
Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein
petitioner because every condition imposed as disqualification grounds are known to be possessed
by him because he was a former elective provincial official who has received his retirement benefits,
he desires to run for the same elective office and at the commencement of the term of office to which
he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for
invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner,
it amounted to a constitutional infirmity fatal in character. The weakness of the petition is thus
apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to
extend unduly the concept of judicial review if a court can roam far and wide and range at will over
the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for
or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof
if duly enacted that is decisive. That would be the test for its validity or lack of it. There is this
relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the
United States] from the beginning lend no support whatever to the assumption that the judiciary may
restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has
caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United
States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading
Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under
well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of
Congressmen said about it. What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to
eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which
Congress had the undoubted power to enact and which could be reenacted in its exact form if the
same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of
equal protection, then his plea for nullification should be accorded a sympathetic response. As the
opinion of the Court makes clear, such imputation is not deserving of credence. The classification
cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact

155
of retirement and the receipt of retirement benefits are factors that can enter into any legislative
determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v.
Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all
persons under similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism
and undue preference cannot be allowed. For the principle is that equal protection and security shall
be given to every person under circumstances, which if not Identical, are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be
denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most
that can be said is that he falls within the-proscribed class. The point was likewise raised as to why
should national officials be excluded in the above provision. The answer is simple. There is nothing
to prevent the legislative body from following a system of priorities. This it did under the challenged
legislative provision. In its opinion, what called for such a measure is the propensity of the local
officials having reached the retirement age and having received retirement benefits once again
running for public office. Accordingly, the provision in question was enacted. A portion of the opinion
in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that
caned for correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to
the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of all
"or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and
unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a
civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact
and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the
constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-
founded. Such being the case, I am in full agreement. I would add that such a provision is moreover
tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional
right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be
dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of
the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the
opinion of the Court, the time element may invariably preclude a full hearing on the charge against
him and thus effectively negate the opportunity of an individual to present himself as a candidate. If,
as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled
as he is with so many complaints filed on his desk would give in to the all-too-human propensity to
take the easy way out and to file charges, then a candidate Would be hard put to destroy the
presumption. A sense of realism for me compels a declaration of nullity of a provision which on its
face is patently offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to
rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void.

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 I. I dissent from the majority's dismissal of the petition insofar as it upholds the
discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which
would impose a special disqualification on petitioner Patricio Dumlao from running for
the elective local office of governor of his home province of Nueva Vizcaya and
would in effect bar the electors of his province from electing him to said office in the
January 30 elections, simply because he is a retired provincial governor of said
province "who has received payment of the retirement benefits to which he is entitled
under the law and who shall have been 65 years of age at the commencement of the
term of office to which he seeks to be elected.

To specially and peculiarly ban a 65-year old previously retired elective local official from running for
the same elective office (of governor, in this case) previously held by him and from which he has
retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated,
e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the
disqualification is for the retiree of 65 to run for the same elective office from which he retired) but
petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and
are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is
this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision
was concocted and designed precisely to frustrate any bid of petition to make a political comeback
as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by
virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the
cardinal constitutional guarantee that equal protection and security shall be given under the law to
every person, under analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is
"to infuse new blood in local governments but the classification (that would bar 65-year old retirees
from running for the same elective local office) is not rational nor reasonable. It is not germane nor
relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may
continue in local governments since they are not disqualified at all to run for any other local elective
office such as from provincial governor, vice-governor, city, municipal or district mayor and vice-
mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang
Bayan, other than the local elective office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of
government are not in any manner disqualified to run for any local elective office, as in the case of
retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full
substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is
running as the official KBL candidate for governor of his province. And even in the case of 65-year
old local elective officials, they are disqualified only when they have received payment of the
retirement benefits to which they are entitled under the law (which amount to very little, compared to
retirement benefits of other executive officials and members of the judiciary). If they have not
received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-
disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an
irrelevant question of whether or not they have received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial distinctions
which make for real differences that would justify the special disqualification of petitioner, which, it is
claimed, "is based on a presumption that elective local officials who have retired and are of
advanced age cannot discharge the functions of the office they seek as those who are differently
situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or
has "young or new blood" does not mean that he would be more efficient, effective and competent
than a mature 65year old like petition er who has had experience on the job and who was observed
at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the

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incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as
a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age
and has been hailed by the President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the
most, a minimum age to hold public office has been required as a qualification to
insure a modicum of maturity 'now reduced to 21 years in the present batas), but no
maximum age has ever been imposed as a disqualification for elect public office
since the right and win of the people to elect the candidate of their choice for any
elective office, no matter his age has always been recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like circumstances
and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is
meant to proscribe undue favor and individual or class privilege on the one hand and hostile
discrimination and the oppression of in quality on the other. The questioned provision should
therefore at the least be declared invalid in its application insofar as it would disqualify petitioner
from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where
no valid distinction could be made as to the relevant conditions that call for consideration, there
should be none as to the privileges conferred and the liabilities imposed. There can be no undue
favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination
against persons in thus ruled out. For the principle is that equal protection and security shall be
given to every person under circumstances, which if not Identical are analogous. If law be looked
upon in terms of burden or charges, those that full within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section
9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any
form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary
investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the
part of the candidate and disqualify him from his candidacy. Such a provision could be the most
insidious weapon to disqualify bona fide candidates who seem to be headed for election and places
in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off
any candidate who may not be to their filing through the filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment of
conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of
his disqualification from office, such judgment of conviction must be final and unappealable. This is
so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned
provision would deny the bona fide candidate substantive due process and would be grossly
violative of his constitutional right of presumption of innocence and of the above-quoted provision of
the 1973 Constitution protecting candidates for public office from any form of harassment and
discrimination.

ADDENDUM

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When the case was voted upon a second time last January 21st, there appeared to be a majority in
favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in
view of the urgency of the matter and the evil sought to be avoided. However, as of this writing,
January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the
action to nullify such second paragraph of section 4 of the Batas in question is premature and has
not been properly submitted for ajudication under the strict procedural require . If this be the case,
my above views, termed as concurrences, should be taken as dissents against the majority action.

G.R. No. 113811 October 7, 1994

ISHMAEL HIMAGAN, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. JUDGE HILARIO MAPAYO, RTC, Br. 11, Davao
City, respondents.

Victorio S. Advincula for petitioner.

KAPUNAN, J.:

Petitioner, a policeman assigned with the medical company of the Philippine National Police
Regional Headquarters at Camp Catitigan, Davao City, was implicated in the killing of Benjamin
Machitar, Jr. and the attempted murder of Bernabe Machitar. After the informations for murder1 and
attempted murder2 were filed with the Regional Trial Court, Branch 11, Davao City, on September
16, 1992, the trial court issued an Order suspending petitioner until the termination of the case on
the basis of Section 47, R.A. 6975, otherwise known as Department of Interior and Local
Government Act of 1990, which provides:

Sec. 47. Preventive Suspension Pending Criminal Case. — Upon the filing of a
complaint or information sufficient in form and substance against a member of the
PNP for grave felonies where the penalty imposed by law is six (6) years and one (1)
day or more, the court shall immediately suspend the accused from office until the
case is terminated. Such case shall be subject to continuous trial and shall be
terminated within ninety (90) days from arraignment of the accused (Emphasis ours).

On October 11, 1993, petitioner filed a motion to lift the order for his suspension,3 relying on Section
42 of P.D. 807 of the Civil Service Decree, that his suspension should be limited to ninety (90) days
and, also, on our ruling in Deloso v. Sandiganbayan,4 and Layno v. Sandiganbayan.5 In his order
dated December 14, 19936 respondent judge denied the motion pointing out that under Section 47 of
R.A. 6975, the accused shall be suspended from office until his case is terminated. The motion for
reconsideration of the order of denial was, likewise, denied.7 Hence, the petition
for certiorari and mandamus to set aside the orders of respondent Judge and to command him to lift
petitioner's preventive suspension.

We find the petition devoid of merit.

There is no question that the case of petitioner who is charged with murder and attempted murder
under the Revised Penal Code falls squarely under Sec. 47 of RA 6975 which specifically applies to
members of the PNP. In dispute however, is whether the provision limits the period of suspension to
90 days, considering that while the first sentence of Sec. 47 provides that the accused who is
charged with grave felonies where the penalty imposed is six (6) years and one (1) day shall be

159
suspended from office "until the case is terminated", the second sentence of the same section
mandates that the case, which shall be subject to continuous trial, shall be terminated within 90 days
from the arraignment of the accused.

Petitioner posits that as a member of the Philippine National Police, under Sec. 91 of RA 6975 which
reads:

Sec. 91. The Civil Service Law and its implementing rules and regulations shall apply
to all personnel of the Department.

he is covered by the Civil Service Law, particularly Sec. 42 of PD 807 of the Civil Service Decree,
which limits the maximum period of suspension to ninety (90) days, thus:

Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. —

When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period of
ninety (90) days after the date of suspension of the respondent who is not a
presidential appointee, the respondent shall be automatically reinstated in the
service; Provided, That when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period of delay shall not be
counted in computing the period of suspension herein provided.

He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service
Law and would be a violation of his constitutional right to equal protection of laws. He further asserts
that the requirements in
Sec. 47 of R.A. 6975 that "the court shall immediately suspend the accused from office until the case
is terminated" and the succeeding sentence, "Such case shall be subject to continuous trial and shall
be terminated within ninety (90) days from arraignment of the accused" are both substantive and
should be taken together to mean that if the case is not terminated within 90 days, the period of
preventive suspension must be lifted because of the command that the trial must be terminated
within ninety (90) days from arraignment.

We disagree.

First. The language of the first sentence of Sec. 47 of R.A. 6975 is clear, plain and free from
ambiguity. It gives no other meaning than that the suspension from office of the member of the PNP
charged with grave offense where the penalty is six years and one day or more shall last until the
termination of the case. The suspension cannot be lifted before the termination of the case. The
second sentence of the same Section providing that the trial must be terminated within ninety (90)
days from arraignment does not qualify or limit the first sentence. The two can stand independently
of each other. The first refers to the period of suspension. The second deals with the time frame
within which the trial should be finished.

Suppose the trial is not terminated within ninety days from arraignment, should the suspension of
accused be lifted? The answer is certainly no. While the law uses the mandatory word "shall" before
the phrase "be terminated within ninety (90) days", there is nothing in R.A. 6975 that suggests that
the preventive suspension of the accused will be lifted if the trial is not terminated within that period.
Nonetheless, the Judge who fails to decide the case within the period without justifiable reason may
be subject to administrative sanctions and, in appropriate cases where the facts so warrant, to
criminal8 or civil liability.9 If the trial is unreasonably delayed without fault of the accused such that he
is deprived of his right to a speedy trial, he is not without a remedy. He may ask for the dismissal of

160
the case. Should the court refuse to dismiss the case, the accused can compel its dismissal
by certiorari, prohibition or mandamus, or secure his liberty by habeas corpus. 10

Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous reading of the section clearly shows
that it refers to the lifting of preventive suspension in pending administrative investigation, not in
criminal cases, as here. What is more, Section 42 expressly limits the period of preventive
suspension to ninety (90) days. Sec. 91 of R.A. 6975 which states that "The Civil Service Law and its
implementing rules shall apply to all personnel of the Department" simply means that the provisions
of the Civil Service Law and its implementing rules and regulations are applicable to members of the
Philippine National Police insofar as the provisions, rules and regulations are not inconsistent with
R.A. 6975. Certainly, Section 42 of the Civil Service Decree which limits the preventive suspension
to ninety (90) days cannot apply to members of the PNP because Sec. 47 of R.A. 6995 provides
differently, that is, the suspension where the penalty imposed by law exceeds six (6) years shall
continue until the case is terminated.

Third. Petitioner's reliance on Layno and Deloso is misplaced. These cases all stemmed from
charges in violation of R.A. 3019 (1060), otherwise known as the Anti-Graft and Corrupt Practices
Act which, unlike
R.A. 6975, is silent on the duration of the preventive suspension. Sec. 13 of R.A. 3019 reads as
follows:

Suspension and loss of benefits. — Any public officer against whom any criminal
prosecution under a valid information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall be suspended from office.
Should he be convicted by final judgment, he shall lose all retirement or gratuity
benefits under any law, but if he is acquitted, he shall be entitled to reinstatement
and to the salaries and benefits which he failed to receive during suspension, unless
in the meantime administrative proceedings have been filed against him.

In the case of Layno, the duly elected mayor of Lianga, Surigao del Sur, was preventively
suspended after an information was filed against him for offenses under R.A. 3019 (1060), the Anti-
Graft Corrupt Practices Act. He had been suspended for four (4) months at the time he filed a motion
to lift his preventive suspension. We held that his indefinite preventive suspension violated the
"equal protection clause" and shortened his term of office. Thus:

2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of
office does not expire until 1986. Were it not for this information and the suspension
decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices
Act, he would have been all this while in the full discharge of his functions as such
municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has
been unable to. It is a basic assumption of the electoral process implicit in the right of
suffrage that the people are entitled to the services of elective officials of their choice.
For misfeasance or malfeasance, any of them could, of course, be proceeded
against administratively or, as in this instance, criminally. In either case, his
culpability must be established. Moreover, if there be a criminal action, he is entitled
to the constitutional presumption of innocence. A preventive suspension may be
justified. Its continuance, however, for an unreasonable length of time raises a due
process question. For even if thereafter he were acquitted, in the meanwhile his right
to hold office had been nullified. Clearly, there would be in such a case an injustice
suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the
people of Lianga. They were deprived of the services of the man they had elected to
serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted

161
 continuance of this preventive suspension had outrun the bounds of reason and
resulted in sheer oppression. A denial of due process is thus quite manifest. It is to
avoid such an unconstitutional application that the order of suspension should be
lifted.

3. Nor is it solely the denial of procedural due process that is apparent. There is
likewise an equal protection question. If the case against petitioner Layno were
administrative in character the Local Government Code would be applicable. It is
therein clearly provided that while preventive suspension is allowable for the causes
therein enumerated, there is this emphatic limitation on the duration thereof: "In all
cases, preventive suspension shall not extend beyond sixty days after the start of
said suspension." It may be recalled that the principle against indefinite suspension
applies equally to national government officials. So it was held in the leading case
of Garcia v. Hon. Executive Secretary. According to the opinion of Justice Barrera:
"To adopt the theory of respondents that an officer appointed by the President, facing
administrative charges, can be preventively suspended indefinitely, would be to
countenance a situation where the preventive suspension can, in effect, be the
penalty itself without a finding of guilt after due hearing, contrary to the express
mandate of the Constitution and the Civil Service law." Further: "In the guise of a
preventive suspension, his term of office could be shortened and he could in effect,
be removed without a finding of a cause duly established after due hearing, in
violation of the Constitution. Clearly then, the policy of the law mandated by the
Constitution frowns at a suspension of indefinite duration. In this particular case, the
mere fact that petitioner is facing a charge under the Anti-Graft and Corrupt Practices
Act does not justify a different rule of law. To do so would be to negate the safeguard
of the equal protection guarantee. 11

The case of Deloso, likewise, involved another elective official who

was preventively suspended as provincial governor, also under RA 3019 the Anti-Graft Law. This
Court, faced with similar factual circumstances as in Layno, applied the ruling in the latter case "in
relation to the principles of due process and equal protection."

It is readily apparent that Section 13 of R.A. 3019 upon which the preventive suspension of the
accused in Laynoand Deloso was based is silent with respect to the duration of the preventive
suspension, such that the suspension of the accused therein for a prolonged and unreasonable
length of time raised a due process question. Not so in the instant case. Petitioner is charged with
murder under the Revised Penal Code and it is undisputed that he falls squarely under Sec. 47 of
R.A. 6975 which categorically states that his suspension shall last until the case is terminated. The
succeeding sentence of the same section requires the case to be subjected to continuous trial which
shall be terminated within ninety (90) days from arraignment of the accused. As previously
emphasized, nowhere in the law does it say that after the lapse of the 90-day period for trial, the
preventive suspension should be lifted. The law is clear, the ninety (90) days duration applies to the
trial of the case not to the suspension. Nothing else should be read into the law. When the words
and phrases of the statute are clear and unequivocal, their meaning determined from the language
employed and the statute must be taken to mean exactly what it says. 12

Fourth. From the deliberations of the Bicameral Conference Committee on National Defense relative
to the bill that became R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar as the period of
suspension is concerned becomes all the more clear. We quote:

So other than that in that particular section, ano ba itong "Jurisdiction

in Criminal Cases?" What is this all about?

162
REP. ZAMORA. In case they are charged with crimes.

THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is

administrative, no. Now, if it is charged with a crime, regular courts.

SEN. GONZALES. Ano, the courts mismo ang magsasabing . . .

THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction.

REP. ZAMORA. The jurisdiction if there is robbery.

THE CHAIRMAN (SEN. MACEDA). Okay. "Preventive Suspension

Pending Criminal Case. Upon the filing of a complaint or informations
sufficient in form and substance against a member of the PNP for
grave felonies where the penalty imposed by law is six years and one
day or more, the court shall immediately suspend the accused from
the office until the case is terminated."

REP. ALBANO. Where are we now Mr. Chairman.

THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years

and one day or more.

SEN. SAGUISAG. Kung five years and litigation ng Supreme Court,

ganoon ba and . . .?

THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay

disciplinary iyon e.

SEN. PIMENTEL. Anong page iyan, Rene?

THE CHAIRMAN (SEN. MACEDA). Page 29 — Preventive

Suspension.

REP. GUTANG. Ang complaint kasi ng mga tao, pagka may pulis na
may criminal case at may baril pa rin at nag-uuniforme, hindi
magandang tingnan e. So parang natatakot iyong mga witnesses.

SEN. GONZALES. Anyway, kung ma-exempt na rito naman siya e.

REP. GUTANG. Mayroong entitlement to reinstatement and pay. . . .

xxx xxx xxx

SEN. PIMENTEL. Dito sa "Preventive Suspension Pending Criminal

Case." Okay ito but I think we should also mandate the early
termination of the case. Ibig sabihin, okay, hindi ba "the suspension
of the accused from office until the case is terminated?" Alam naman
natin ang takbo ng mga kaso rito sa ating bansa e.

163
REP. ZAMORA. Twenty days, okay na.

SEN. PIMENTEL. Hindi, and ibig kong sabihin, let us just assume
that a case can be, as Rene pointed out, can run to six years bago
ma-terminate, sometimes ten years pa nga e. Okay, but maybe we
should mandate. . .

REP. ZAMORA. Continuous hearing.

SEN. PIMENTEL. Not only that, but the case must be terminated
within a period.

REP. ALBANO. Ninety days na ho sa Supreme Court the trial.

SEN. PIMENTEL. Ha?

REP. ALBANO. The trial must be done within ninety days,

SEN. PIMENTEL. Ang ibig kong sabihin kung maari sanang ilagay
rito that the case shall also be terminated in one year from the time . .
. aywan ko kung kaya nating gawin iyon.

REP. ALBANO. One solution, Mr. Chairman.

THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba that has

all been held as directory even if you put it in the law?

SEN. PIMENTEL. I know, but, iyon na nga, we are looking at some

solution to a particular situation.

SEN. ANGARA. Let's have continuous hearing and be terminated not

later than ninety days.

REP. ZAMORA. Ang point ni Ernie, that's really only the directory. All
of these, well, looks exactly the same thing.

SEN. ANGARA. No, but at least, we will shorten it up in a case like

this. We are really keen on having it quick, swift.

SEN. PIMENTEL. Swift justice.

REP. ALBANO. Mr. Chairman.

THE CHAIRMAN. (SEN. MACEDA). Yes.

REP. ALBANO. Following the Veloso case in Anti-graft cases before

the Sandiganbayan, the preventive suspension is only ninety days. In
no case shall it go beyond ninety days which can also be applicable
here because this is a preventive suspension.

164
SEN. PIMENTEL. No, because you can legislate at least.

SEN. SAGUISAG. But then the case may be anti-graft ha. The case
filed against a policeman may be anti-graft in nature. . .

SEN. PIMENTEL. Correct, correct, but is that a constitutional

provision? Is it?

REP. ALBANO. No, but as a standard procedure.

SEN. PIMENTEL. Then you can legislate.

THE CHAIRMAN (SEN. MACEDA). No, because this particular

provision is for criminal cases. I know anti-graft is a criminal case but
here we are talking, let's say, of murder, rape, treason, robbery.
That's why it is in that context that there is a difference between a
purely anti-graft case and a criminal case which could be a serious
case since it is six years and one day or more, so it must be already a
grave felony.

xxx xxx xxx

REP. ALBANO. . . .

What I mean to say is, preventive suspension, we can use the

Veloso case.

THE CHAIRMAN (SEN. MACEDA). No, that's too short, that's what I
am saying. The feeling here is, for policeman, we have to be stricter
especially if it is a criminal case.

What Rene is just trying to say is, he is agreeable that the suspension
is until the case is terminated, but he just wants some administrative
balancing to expedite it. So let us study what kind of language could
be done along that line. So just on the National Police Commission . .
.

SEN. ANGARA. Can I suggest a language that may reflect. . .

THE CHAIRMAN (SEN. MACEDA). Okay, please.

SEN. ANGARA. "Such case shall be subject to continuous trial and

be terminated not later than . . ." whatever we agree.

THE CHAIRMAN (SEN. MACEDA). Okay, so let's study that.

So if there are any further amendments to Chapter 2 on the National

Police Commission. . . . . . 13

165
The foregoing discussions reveal the legislative intent to place on preventive suspension a member
of the PNP charged with grave felonies where the penalty imposed by law exceeds six years of
imprisonment and which suspension continues until the case against him is terminated.

The reason why members of the PNP are treated differently from the other classes of persons
charged criminally or administratively insofar as the application of the rule on preventive suspension
is concerned is that policemen carry weapons and the badge of the law which can be used to harass
or intimidate witnesses against them, as succinctly brought out in the legislative discussions.

If a suspended policeman criminally charged with a serious offense is reinstated to his post while his
case is pending, his victim and the witnesses against him are obviously exposed to constant threat
and thus easily cowed to silence by the mere fact that the accused is in uniform and armed. The
imposition of preventive suspension for over 90 days under Section 47 of
R.A. 6975 does not violate the suspended policeman's constitutional right to equal protection of the
laws.

The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality. Recognizing the existence of real differences
among men, the equal protection clause does not demand absolute equality. It merely requires that
all persons shall be treated alike, under like circumstances and conditions both as to the privileges
conferred and liabilities enforced. 14 Thus, the equal protection clause does not absolutely forbid
classifications, such as the one which exists in the instant case. If the classification is based on real
and substantial differences; 15 is germane to the purpose of the law; 16 applies to all members of the
same
class; 17 and applies to current as well as future conditions, 18 the classification may not be impugned
as violating the Constitution's equal protection guarantee. A distinction based on real and reasonable
considerations related to a proper legislative purpose such as that which exists here is neither
unreasonable, capricious nor unfounded.

ELEAZAR P. QUINTO and G.R. No. 189698

GERINO A. TOLENTINO, JR.,
Petitioners, Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,

166
 VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON Promulgated:
ELECTIONS,
Respondent. February 22, 2010
x ----------------------------------------------------------------------------------------x

RESOLUTION

PUNO, C.J.:

Upon a careful review of the case at bar, this Court resolves to grant the respondent
Commission on Elections (COMELEC) motion for reconsideration, and the
movants-intervenors motions for reconsideration-in-intervention, of this Courts
December 1, 2009 Decision (Decision).[1]

The assailed Decision granted the Petition for Certiorari and Prohibition filed
by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional
the second proviso in the third paragraph of Section 13 of Republic Act No.
9369,[2] Section 66 of the Omnibus Election Code[3] and Section 4(a) of COMELEC
Resolution No. 8678,[4] mainly on the ground that they violate the equal protection
clause of the Constitution and suffer from overbreadth. The assailed Decision thus
paved the way for public appointive officials to continue discharging the powers,
prerogatives and functions of their office notwithstanding their entry into the
political arena.
In support of their respective motions for reconsideration, respondent
COMELEC and movants-intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional
proscription against the participation of public appointive officials and
members of the military in partisan political activity;
(2) The assailed provisions do not violate the equal protection clause when
they accord differential treatment to elective and appointive officials,
because such differential treatment rests on material and substantial
distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth;
and

167
 (4) There is a compelling need to reverse the assailed Decision, as public
safety and interest demand such reversal.

We find the foregoing arguments meritorious.

I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the
COMELECs motion for reconsideration which was filed on December 15, 2009, as
well as the propriety of the motions for reconsideration-in-intervention which were
filed after the Court had rendered its December 1, 2009 Decision.

i. Timeliness of COMELECs Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,[5] in relation to Section
1, Rule 52 of the same rules,[6] COMELEC had a period of fifteen days from receipt
of notice of the assailed Decision within which to move for its
reconsideration. COMELEC received notice of the assailed Decision on December
2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed
on December 14, 2009. The corresponding Affidavit of Service (in substitution of
the one originally submitted on December 14, 2009) was subsequently filed on
December 17, 2009 still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

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

A person who has legal interest in the matter in litigation or in the success of either
of the parties, or an interest against both, or is so situated as to be adversely affected
by a distribution or other disposition of property in the custody of the court or of an
officer thereof may, with leave of court, be allowed to intervene in the action. The
court shall consider whether or not the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties, and whether or not the
intervenors rights may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for
intervention shall be entertained when the following requisites are satisfied: (1) the
would-be intervenor shows that he has a substantial right or interest in the case; and

168
(2) such right or interest cannot be adequately pursued and protected in another
proceeding.[7]

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the
time within which a motion for intervention may be filed, viz.:

SECTION 2. Time to intervene. The motion for intervention may be filed at any
time before rendition of judgment by the trial court. A copy of the pleading-in-
intervention shall be attached to the motion and served on the original
parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even
beyond the period prescribed in the Rule, when demanded by the higher interest of
justice. Interventions have also been granted to afford indispensable parties, who
have not been impleaded, the right to be heard even after a decision has been
rendered by the trial court,[8] when the petition for review of the judgment has
already been submitted for decision before the Supreme Court,[9] and even where the
assailed order has already become final and executory.[10] In Lim
v. Pacquing,[11] the motion for intervention filed by the Republic of
the Philippines was allowed by this Court to avoid grave injustice and injury and to
settle once and for all the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on

the sound discretion of the court[12] after consideration of the appropriate
circumstances.[13] We stress again that Rule 19 of the Rules of Court is a rule of
procedure whose object is to make the powers of the court fully and completely
available for justice.[14] Its purpose is not to hinder or delay, but to facilitate and
promote the administration of justice.[15]

We rule that, with the exception of the IBP Cebu City Chapter, all the
movants-intervenors may properly intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial

right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to
challenge the December 1, 2009 Decision, which nullifies a long established law; as
a voter, he has a right to intervene in a matter that involves the electoral process; and
as a public officer, he has a personal interest in maintaining the trust and confidence
of the public in its system of government.

169
 On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible
are candidates in the May 2010 elections running against appointive officials who,
in view of the December 1, 2009 Decision, have not yet resigned from their posts
and are not likely to resign from their posts. They stand to be directly injured by the
assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be

adequately pursued and protected in another proceeding. Clearly, their rights will be
foreclosed if this Courts Decision attains finality and forms part of the laws of the
land.

With regard to the IBP Cebu City Chapter, it anchors its standing on the
assertion that this case involves the constitutionality of elections laws for this coming
2010 National Elections, and that there is a need for it to be allowed to intervene xxx
so that the voice of its members in the legal profession would also be heard before
this Highest Tribunal as it resolves issues of transcendental importance.[16]

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City
Chapter has failed to present a specific and substantial interest sufficient to clothe it
with standing to intervene in the case at bar. Its invoked interest is, in character, too
indistinguishable to justify its intervention.

We now turn to the substantive issues.

II.
Substantive Issues

The assailed Decision struck down Section 4(a) of Resolution 8678, the
second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369,
and Section 66 of the Omnibus Election Code, on the following grounds:

(1) They violate the equal protection clause of the Constitution because of the
differential treatment of persons holding appointive offices and those
holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil
servants holding appointive posts: (a) without distinction as to whether or
not they occupy high/influential positions in the government, and (b) they
limit these civil servants activity regardless of whether they be partisan or
nonpartisan in character, or whether they be in the national, municipal
or barangaylevel; and
170
 (3) Congress has not shown a compelling state interest to restrict the
fundamental right of these public appointive officials.

We grant the motions for reconsideration. We now rule that Section 4(a) of
Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso
in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and
accordingly reverse our December 1, 2009 Decision.

III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the

present state of the law and jurisprudence on the matter, viz.:

Incumbent Appointive Official. - Under Section 13 of RA 9369, which

reiterates Section 66 of the Omnibus Election Code, any person holding a
public appointive office or position, including active members of the Armed
Forces of the Philippines, and officers and employees in government-owned
or -controlled corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy.

Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of

RA 9006 or the Fair Election Act,[17] which repealed Section 67 of the
Omnibus Election Code[18] and rendered ineffective Section 11 of R.A. 8436
insofar as it considered an elected official as resigned only upon the start of
the campaign period corresponding to the positions for which they are
running,[19] an elected official is not deemed to have resigned from his office
upon the filing of his certificate of candidacy for the same or any other elected
office or position. In fine, an elected official may run for another position
without forfeiting his seat.

These laws and regulations implement Section 2(4), Article IX-B of the 1987
Constitution, which prohibits civil service officers and employees from engaging in
any electioneering or partisan political campaign.

The intention to impose a strict limitation on the participation of civil service officers
and employees in partisan political campaigns is unmistakable. The exchange
between Commissioner Quesada and Commissioner Foz during the deliberations of
the Constitutional Commission is instructive:

171
 MS. QUESADA.

xxxx

Secondly, I would like to address the issue here as provided in Section 1 (4), line
12, and I quote: "No officer or employee in the civil service shall engage, directly
or indirectly, in any partisan political activity." This is almost the same provision
as in the 1973 Constitution. However, we in the government service have actually
experienced how this provision has been violated by the direct or indirect partisan
political activities of many government officials.

So, is the Committee willing to include certain clauses that would make this
provision more strict, and which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing
rules on the matter are more than exhaustive enough to really prevent officers and
employees in the public service from engaging in any form of partisan political
activity. But the problem really lies in implementation because, if the head of a
ministry, and even the superior officers of offices and agencies of government will
themselves violate the constitutional injunction against partisan political activity,
then no string of words that we may add to what is now here in this draft will really
implement the constitutional intent against partisan political activity. x x
x[20] (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers

and employees is presently reflected and implemented by a number of statutes.
Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I,
Book V of the Administrative Code of 1987 respectively provide in relevant part:

Section 44. Discipline: General Provisions:

xxxx

(b) The following shall be grounds for disciplinary action:

xxxx

(26) Engaging directly or indirectly in partisan political activities by one

holding a non-political office.

xxxx

Section 55. Political Activity. No officer or employee in the Civil Service including
members of the Armed Forces, shall engage directly or indirectly in any partisan
political activity or take part in any election except to vote nor shall he use his

172
 official authority or influence to coerce the political activity of any other person or
body. Nothing herein provided shall be understood to prevent any officer or
employee from expressing his views on current political problems or issues, or from
mentioning the names of his candidates for public office whom he supports:
Provided, That public officers and employees holding political offices may take
part in political and electoral activities but it shall be unlawful for them to solicit
contributions from their subordinates or subject them to any of the acts involving
subordinates prohibited in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further
makes intervention by civil service officers and employees in partisan political
activities an election offense, viz.:

SECTION 261. Prohibited Acts. The following shall be guilty of an election

offense:

xxxx

(i) Intervention of public officers and employees. Any officer or employee in the
civil service, except those holding political offices; any officer, employee, or
member of the Armed Forces of the Philippines, or any police force, special forces,
home defense forces, barangay self-defense units and all other para-military units
that now exist or which may hereafter be organized who, directly or indirectly,
intervenes in any election campaign or engages in any partisan political activity,
except to vote or to preserve public order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the
participation of civil service officers and employees in partisan political activities is
too plain to be mistaken.

But Section 2(4), Article IX-B of the 1987 Constitution and the implementing
statutes apply only to civil servants holding apolitical offices. Stated
differently, the constitutional ban does not cover elected officials,
notwithstanding the fact that [t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or
controlled corporations with original charters.[21] This is because elected public
officials, by the very nature of their office, engage in partisan political activities
almost all year round, even outside of the campaign period.[22] Political partisanship
is the inevitable essence of a political office, elective positions included.[23]

The prohibition notwithstanding, civil service officers and employees are

allowed to vote, as well as express their views on political issues, or mention the

173
names of certain candidates for public office whom they support. This is crystal clear
from the deliberations of the Constitutional Commission, viz.:

MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2,

Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any"
and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14,
delete the word "activity" and in lieu thereof substitute the word CAMPAIGN.

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed.

MS. AQUINO: The draft as presented by the Committee deleted the phrase "except
to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase
"except to vote" was not intended as a guarantee to the right to vote but as a
qualification of the general prohibition against taking part in elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an

exception to this prohibition, it will amount to disenfranchisement. We know that
suffrage, although plenary, is not an unconditional right. In other words, the
Legislature can always pass a statute which can withhold from any class the right
to vote in an election, if public interest so required. I would only like to reinstate
the qualification by specifying the prohibited acts so that those who may want to
vote but who are likewise prohibited from participating in partisan political
campaigns or electioneering may vote.

MR. FOZ: There is really no quarrel over this point, but please understand
that there was no intention on the part of the Committee to disenfranchise any
government official or employee. The elimination of the last clause of this provision
was precisely intended to protect the members of the civil service in the sense that
they are not being deprived of the freedom of expression in a political contest. The
last phrase or clause might have given the impression that a government employee
or worker has no right whatsoever in an election campaign except to vote, which is
not the case. They are still free to express their views although the intention is not
really to allow them to take part actively in a political campaign.[24]

IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and
Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus
Election Code, and the second proviso in the third paragraph of Section 13 of RA
9369 are not violative of the equal protection clause of the Constitution.

174
 i. Farias, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-
resigned provisions challenged in the case at bar violate the equal protection clause
of the Constitution in Farias, et al. v. Executive Secretary, et al.[25]

In Farias, the constitutionality of Section 14 of the Fair Election Act, in

relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the
ground, among others, that it unduly discriminates against appointive officials. As
Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of
elected officials) of the Omnibus Election Code, elected officials are no longer
considered ipso facto resigned from their respective offices upon their filing of
certificates of candidacy. In contrast, since Section 66 was not repealed, the
limitation on appointive officials continues to be operative they are deemed resigned
when they file their certificates of candidacy.

The petitioners in Farias thus brought an equal protection challenge against

Section 14, with the end in view of having the deemed-resigned provisions apply
equally to both elected and appointive officials. We held, however, that the legal
dichotomy created by the Legislature is a reasonable classification, as there are
material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to
Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection
clause of the Constitution, failed muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus

Election Code pertaining to elective officials gives undue benefit to such officials
as against the appointive ones and violates the equal protection clause of the
constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute,
but is subject to reasonable classification. If the groupings are characterized by
substantial distinctions that make real differences, one class may be treated and
regulated differently from the other. The Court has explained the nature of the equal
protection guarantee in this manner:

The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by
territory within which it is to operate. It does not demand absolute

175
 equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exist for making
a distinction between those who fall within such class and those who
do not.

Substantial distinctions clearly exist between elective officials and

appointive officials. The former occupy their office by virtue of the mandate of the
electorate. They are elected to an office for a definite term and may be removed
therefrom only upon stringent conditions. On the other hand, appointive officials
hold their office by virtue of their designation thereto by an appointing authority.
Some appointive officials hold their office in a permanent capacity and are entitled
to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under
Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of
the Administrative Code of 1987 (Executive Order No. 292), appointive officials,
as officers and employees in the civil service, are strictly prohibited from engaging
in any partisan political activity or take (sic) part in any election except to vote.
Under the same provision, elective officials, or officers or employees holding
political offices, are obviously expressly allowed to take part in political and
electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election

Code, the legislators deemed it proper to treat these two classes of officials
differently with respect to the effect on their tenure in the office of the filing of the
certificates of candidacy for any position other than those occupied by them. Again,
it is not within the power of the Court to pass upon or look into the wisdom of this
classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e.,
elected officials vis--vis appointive officials, is anchored upon material and
significant distinctions and all the persons belonging under the same classification
are similarly treated, the equal protection clause of the Constitution is, thus, not
infringed.[26]

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that
our assailed Decision gave it new life. We ought to be guided by the doctrine of stare
decisis et non quieta movere. This doctrine, which is really adherence to precedents,
mandates that once a case has been decided one way, then another case involving
exactly the same point at issue should be decided in the same manner. [27] This
doctrine is one of policy grounded on the necessity for securing certainty and stability

176
of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his
treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and
the opposite way between another. If a group of cases involves the same point, the
parties expect the same decision. It would be a gross injustice to decide alternate
cases on opposite principles. If a case was decided against me yesterday when I was
a defendant, I shall look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in my breast; it would be
an infringement, material and moral, of my rights." Adherence to precedent must
then be the rule rather than the exception if litigants are to have faith in the even-
handed administration of justice in the courts.[28]

Our Farias ruling on the equal protection implications of the deemed-resigned

provisions cannot be minimalized as mere obiter dictum. It is trite to state that an
adjudication on any point within the issues presented by the case cannot be
considered as obiter dictum.[29] This rule applies to all pertinent questions that are
presented and resolved in the regular course of the consideration of the case and lead
up to the final conclusion, and to any statement as to the matter on which the decision
is predicated.[30] For that reason, a point expressly decided does not lose its value as
a precedent because the disposition of the case is, or might have been, made on some
other ground; or even though, by reason of other points in the case, the result reached
might have been the same if the court had held, on the particular point, otherwise
than it did.[31] As we held in Villanueva, Jr. v. Court of Appeals, et al.:[32]
A decision which the case could have turned on is not regarded as obiter dictum
merely because, owing to the disposal of the contention, it was necessary to
consider another question, nor can an additional reason in a decision, brought
forward after the case has been disposed of on one ground, be regarded as dicta.
So, also, where a case presents two (2) or more points, any one of which is sufficient
to determine the ultimate issue, but the court actually decides all such points, the
case as an authoritative precedent as to every point decided, and none of such
points can be regarded as having the status of a dictum, and one point should not
be denied authority merely because another point was more dwelt on and more
fully argued and considered, nor does a decision on one proposition make
statements of the court regarding other propositions dicta.[33](italics supplied)

ii. Classification Germane to the Purposes of the Law

The Farias ruling on the equal protection challenge stands on solid ground
even if reexamined.

177
 To start with, the equal protection clause does not require the universal
application of the laws to all persons or things without distinction.[34] What it simply
requires is equality among equals as determined according to a valid
classification.[35] The test developed by jurisprudence here and yonder is that of
reasonableness,[36] which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[37]

Our assailed Decision readily acknowledged that these deemed-resigned

provisions satisfy the first, third and fourth requisites of reasonableness. It, however,
proffers the dubious conclusion that the differential treatment of appointive officials
vis--vis elected officials is not germane to the purpose of the law, because whether
one holds an appointive office or an elective one, the evils sought to be prevented
by the measure remain, viz.:

For example, the Executive Secretary, or any Member of the Cabinet for that
matter, could wield the same influence as the Vice-President who at the same time
is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were
appointed to take charge of national housing, social welfare development, interior
and local government, and foreign affairs). With the fact that they both head
executive offices, there is no valid justification to treat them differently when both
file their [Certificates of Candidacy] for the elections. Under the present state of
our law, the Vice-President, in the example, running this time, let us say, for
President, retains his position during the entire election period and can still use the
resources of his office to support his campaign.[38]

Sad to state, this conclusion conveniently ignores the long-standing rule that
to remedy an injustice, the Legislature need not address every manifestation of the
evil at once; it may proceed one step at a time.[39] In addressing a societal concern,
it must invariably draw lines and make choices, thereby creating some inequity as to
those included or excluded.[40] Nevertheless, as long as the bounds of reasonable
choice are not exceeded, the courts must defer to the legislative judgment.[41] We
may not strike down a law merely because the legislative aim would have been more
fully achieved by expanding the class.[42] Stated differently, the fact that a legislative
classification, by itself, is underinclusive will not render it unconstitutionally
arbitrary or invidious.[43] There is no constitutional requirement that regulation must
reach each and every class to which it might be applied;[44] that the Legislature must
be held rigidly to the choice of regulating all or none.
178
 Thus, any person who poses an equal protection challenge must convincingly
show that the law creates a classification that is palpably arbitrary or
capricious.[45] He must refute all possible rational bases for the differing treatment,
whether or not the Legislature cited those bases as reasons for the enactment,[46] such
that the constitutionality of the law must be sustained even if the reasonableness of
the classification is fairly debatable.[47] In the case at bar, the petitioners failed and
in fact did not even attempt to discharge this heavy burden. Our assailed Decision
was likewise silent as a sphinx on this point even while we submitted the following
thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the
statutes distinction is unfair, underinclusive, unwise, or not the best solution from
a public-policy standpoint; rather, we must find that there is no reasonably rational
reason for the differing treatment.[48]

In the instant case, is there a rational justification for excluding elected

officials from the operation of the deemed resigned provisions? I submit that there
is.

An election is the embodiment of the popular will, perhaps the purest

expression of the sovereign power of the people.[49] It involves the choice or
selection of candidates to public office by popular vote.[50]Considering that elected
officials are put in office by their constituents for a definite term, it may justifiably
be said that they were excluded from the ambit of the deemed resigned provisions
in utmost respect for the mandate of the sovereign will. In other words, complete
deference is accorded to the will of the electorate that they be served by such
officials until the end of the term for which they were elected. In contrast, there is
no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is

therefore germane to the purposes of the law. For the law was made not merely
to preserve the integrity, efficiency, and discipline of the public service; the
Legislature, whose wisdom is outside the rubric of judicial scrutiny, also
thought it wise to balance this with the competing, yet equally compelling,
interest of deferring to the sovereign will.[51] (emphasis in the original)

In fine, the assailed Decision would have us equalize the playing field by
invalidating provisions of law that seek to restrain the evils from running riot. Under
the pretext of equal protection, it would favor a situation in which the evils are
unconfined and vagrant, existing at the behest of both appointive and elected
officials, over another in which a significant portion thereof is contained. The
absurdity of that position is self-evident, to say the least.

179
 The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his
dissent, that elected officials (vis--vis appointive officials) have greater political
clout over the electorate, is indeed a matter worth exploring but not by this Court.
Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is
given the authority, under our constitutional system, to balance competing interests
and thereafter make policy choices responsive to the exigencies of the times. It is
certainly within the Legislatures power to make the deemed-resigned provisions
applicable to elected officials, should it later decide that the evils sought to be
prevented are of such frequency and magnitude as to tilt the balance in favor of
expanding the class. This Court cannot and should not arrogate unto itself the power
to ascertain and impose on the people the best state of affairs from a public policy
standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our

assailed Decision adverted to, and extensively cited, Mancuso v. Taft.[52] This was
a decision of the First Circuit of the United States Court of Appeals promulgated in
March 1973, which struck down as unconstitutional a similar statutory provision.
Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is inextricably linked with two
fundamental freedoms freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental
right must be subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and
impartiality of its public work force, the deemed-resigned provisions
pursue their objective in a far too heavy-handed manner as to render them
unconstitutional.

It then concluded with the exhortation that since the Americans, from whom we
copied the provision in question, had already stricken down a similar measure for
being unconstitutional[,] it is high-time that we, too, should follow suit.

Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot

blink away the fact that the United States Supreme Court effectively
overruled Mancuso three months after its promulgation by the United States Court
of Appeals. In United States Civil Service Commission, et al. v. National
Association of Letter Carriers AFL-CIO, et al.[53] and Broadrick, et al. v. State
180
of Oklahoma, et al.,[54] the United States Supreme Court was faced with the issue
of whether statutory provisions prohibiting federal[55] and state[56] employees
from taking an active part in political management or in political
campaigns were unconstitutional as to warrant facial invalidation. Violation of these
provisions results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection
clause. It held that (i) in regulating the speech of its employees, the state as employer
has interests that differ significantly from those it possesses in regulating the speech
of the citizenry in general; (ii) the courts must therefore balance the legitimate
interest of employee free expression against the interests of the employer in
promoting efficiency of public services; (iii) if the employees expression interferes
with the maintenance of efficient and regularly functioning services, the limitation
on speech is not unconstitutional; and (iv) the Legislature is to be given some
flexibility or latitude in ascertaining which positions are to be covered by any
statutory restrictions.[57] Therefore, insofar as government employees are concerned,
the correct standard of review is an interest-balancing approach, a means-end
scrutiny that examines the closeness of fit between the governmental interests and
the prohibitions in question.[58]

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country
appears to have been that partisan political activities by federal employees must be
limited if the Government is to operate effectively and fairly, elections are to play
their proper part in representative government, and employees themselves are to be
sufficiently free from improper influences. The restrictions so far imposed on
federal employees are not aimed at particular parties, groups, or points of view, but
apply equally to all partisan activities of the type described. They discriminate
against no racial, ethnic, or religious minorities. Nor do they seek to control
political opinions or beliefs, or to interfere with or influence anyone's vote at the
polls.

But, as the Court held in Pickering v. Board of Education,[59] the

government has an interest in regulating the conduct and the speech of its
employees that differ(s) significantly from those it possesses in connection with
regulation of the speech of the citizenry in general. The problem in any case is to
arrive at a balance between the interests of the (employee), as a citizen, in
commenting upon matters of public concern and the interest of the (government),
as an employer, in promoting the efficiency of the public services it performs
through its employees. Although Congress is free to strike a different balance than
it has, if it so chooses, we think the balance it has so far struck is sustainable by the

181
obviously important interests sought to be served by the limitations on partisan
political activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the Executive

Branch of the Government, or those working for any of its agencies,
should administer the law in accordance with the will of Congress, rather than in
accordance with their own or the will of a political party. They are expected to
enforce the law and execute the programs of the Government without bias or
favoritism for or against any political party or group or the members thereof. A
major thesis of the Hatch Act is that to serve this great end of Government-the
impartial execution of the laws-it is essential that federal employees, for example,
not take formal positions in political parties, not undertake to play substantial roles
in partisan political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective
government.

There is another consideration in this judgment: it is not only important that

the Government and its employees in fact avoid practicing political justice, but it is
also critical that they appear to the public to be avoiding it, if confidence in the
system of representative Government is not to be eroded to a disastrous extent.

Another major concern of the restriction against partisan activities by

federal employees was perhaps the immediate occasion for enactment of the Hatch
Act in 1939. That was the conviction that the rapidly expanding Government work
force should not be employed to build a powerful, invincible, and perhaps corrupt
political machine. The experience of the 1936 and 1938 campaigns convinced
Congress that these dangers were sufficiently real that substantial barriers should
be raised against the party in power-or the party out of power, for that matter-using
the thousands or hundreds of thousands of federal employees, paid for at public
expense, to man its political structure and political campaigns.

A related concern, and this remains as important as any other, was to further
serve the goal that employment and advancement in the Government service not
depend on political performance, and at the same time to make sure that
Government employees would be free from pressure and from express or tacit
invitation to vote in a certain way or perform political chores in order to curry
favor with their superiors rather than to act out their own beliefs. It may be urged
that prohibitions against coercion are sufficient protection; but for many years the
joint judgment of the Executive and Congress has been that to protect the rights of
federal employees with respect to their jobs and their political acts and beliefs it is
not enough merely to forbid one employee to attempt to influence or coerce another.
For example, at the hearings in 1972 on proposed legislation for liberalizing the
prohibition against political activity, the Chairman of the Civil Service Commission
stated that the prohibitions against active participation in partisan political
management and partisan political campaigns constitute the most significant
safeguards against coercion . . .. Perhaps Congress at some time will come to a

182
 different view of the realities of political life and Government service; but that is
its current view of the matter, and we are not now in any position to dispute it. Nor,
in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities
is absolute in any event.[60] x x x

xxxx

As we see it, our task is not to destroy the Act if we can, but to construe it,
if consistent with the will of Congress, so as to comport with constitutional
limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is

constitutionally permissible, viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on

the partisan political conduct of state employees. Appellants freely concede that
such restrictions serve valid and important state interests, particularly with respect
to attracting greater numbers of qualified people by insuring their job security, free
from the vicissitudes of the elective process, and by protecting them from political
extortion.Rather, appellants maintain that however permissible, even
commendable, the goals of s 818 may be, its language is unconstitutionally vague
and its prohibitions too broad in their sweep, failing to distinguish between conduct
that may be proscribed and conduct that must be permitted. For these and other
reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in
toto and cannot be enforced against them or anyone else.

We have held today that the Hatch Act is not impermissibly vague.[61] We have
little doubt that s 818 is similarly not so vague that men of common intelligence
must necessarily guess at its meaning.[62] Whatever other problems there are with s
818, it is all but frivolous to suggest that the section fails to give adequate warning
of what activities it proscribes or fails to set out explicit standards' for those who
must apply it. In the plainest language, it prohibits any state classified employee
from being an officer or member of a partisan political club or a candidate for any
paid public office. It forbids solicitation of contributions for any political
organization, candidacy or other political purpose and taking part in the
management or affairs of any political party or in any political campaign. Words
inevitably contain germs of uncertainty and, as with the Hatch Act, there may be
disputes over the meaning of such terms in s 818 as partisan, or take part in, or
affairs of political parties. But what was said in Letter Carriers, is applicable here:
there are limitations in the English language with respect to being both specific and
manageably brief, and it seems to us that although the prohibitions may not satisfy
those intent on finding fault at any cost, they are set out in terms that the ordinary
person exercising ordinary common sense can sufficiently understand and comply
with, without sacrifice to the public interest.' x x x

183
 xxxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to

reach protected, as well as unprotected conduct, and must therefore be struck down
on its face and held to be incapable of any constitutional application. We do not
believe that the overbreadth doctrine may appropriately be invoked in this manner
here.

xxxx

The consequence of our departure from traditional rules of standing in the

First Amendment area is that any enforcement of a statute thus placed at issue is
totally forbidden until and unless a limiting construction or partial invalidation so
narrows it as to remove the seeming threat or deterrence to constitutionally
protected expression. Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the Court sparingly and only
as a last resort. x x x

x x x But the plain import of our cases is, at the very least, that facial over-breadth
adjudication is an exception to our traditional rules of practice and that its function,
a limited one at the outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from pure speech toward conduct and that
conduct-even if expressive-falls within the scope of otherwise valid criminal laws
that reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct. Although such laws, if too broadly
worded, may deter protected speech to some unknown extent, there comes a point
where that effect-at best a prediction-cannot, with confidence, justify invalidating
a statute on its face and so prohibiting a State from enforcing the statute against
conduct that is admittedly within its power to proscribe. To put the matter another
way, particularly where conduct and not merely speech is involved, we believe that
the overbreadth of a statute must not only be real, but substantial as well, judged
in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not
substantially overbroad and that whatever overbreadth may exist should be cured
through case-by-case analysis of the fact situations to which its sanctions,
assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory

acts, s 818 is directed, by its terms, at political expression which if engaged in by
private persons would plainly be protected by the First and Fourteenth
Amendments. But at the same time, s 818 is not a censorial statute, directed at
particular groups or viewpoints. The statute, rather, seeks to regulate political
activity in an even-handed and neutral manner. As indicted, such statutes have in
the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact
remains that s 818 regulates a substantial spectrum of conduct that is as manifestly
subject to state regulation as the public peace or criminal trespass. This much was

184
 established in United Public Workers v. Mitchell, and has been unhesitatingly
reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is
no question that s 818 is valid at least insofar as it forbids classified employees
from: soliciting contributions for partisan candidates, political parties, or other
partisan political purposes; becoming members of national, state, or local
committees of political parties, or officers or committee members in partisan
political clubs, or candidates for any paid public office; taking part in the
management or affairs of any political party's partisan political campaign; serving
as delegates or alternates to caucuses or conventions of political parties; addressing
or taking an active part in partisan political rallies or meetings; soliciting votes or
assisting voters at the polls or helping in a partisan effort to get voters to the polls;
participating in the distribution of partisan campaign literature; initiating or
circulating partisan nominating petitions; or riding in caravans for any political
party or partisan political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may
be susceptible of some other improper applications. But, as presently construed,
we do not believe that s 818 must be discarded in toto because some persons
arguably protected conduct may or may not be caught or chilled by the statute.
Section 818 is not substantially overbroad and it not, therefore, unconstitutional on
its face. (italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not
deny the principles enunciated in Letter Carriers and Broadrick. He would hold,
nonetheless, that these cases cannot be interpreted to mean a reversal
of Mancuso, since they pertain to different types of laws and were decided based on
a different set of facts, viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission
was enforcing, or threatening to enforce, the Hatch Acts prohibition against active
participation in political management or political campaigns. The plaintiffs desired
to campaign for candidates for public office, to encourage and get federal
employees to run for state and local offices, to participate as delegates in party
conventions, and to hold office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and
overbroad a provision in the (sic) Oklahomas Merit System of Personnel
Administration Act restricting the political activities of the States classified civil
servants, in much the same manner as the Hatch Act proscribed partisan political
activities of federal employees. Prior to the commencement of the action, the
appellants actively participated in the 1970 reelection campaign of their superior,
and were administratively charged for asking other Corporation Commission
employees to do campaign work or to give referrals to persons who might help in
the campaign, for soliciting money for the campaign, and for receiving and
distributing campaign posters in bulk.

185
 Mancuso, on the other hand, involves, as aforesaid, an automatic
resignation provision. Kenneth Mancuso, a full time police officer and classified
civil service employee of the City of Cranston, filed as a candidate for nomination
as representative to the Rhode Island General Assembly. The Mayor of Cranston
then began the process of enforcing the resign-to-run provision of the City Home
Rule Charter.

Clearly, as the above-cited US cases pertain to different types of laws and

were decided based on a different set of facts, Letter Carriers and Broadrick cannot
be interpreted to mean a reversal of Mancuso. x x x (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases.
Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned
the constitutionality of resign-to-run laws, viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for
nomination as representative to the Rhode Island General Assembly. He
assailed the constitutionality of 14.09(c) of the City Home Rule Charter,
which prohibits continuing in the classified service of the city after
becoming a candidate for nomination or election to any public office.

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch Acts
prohibition against active participation in political management or political
campaigns[63] with respect to certain defined activities in which they
desired to engage. The plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged

that its members were desirous of, among others, running in
local elections for offices such as school board member, city
council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file
as a candidate for the office of Borough Councilman in his
local community for fear that his participation in a partisan
election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a
Republican candidate in the 1971 partisan election for the
mayor of West Lafayette, Indiana, and that he would do so
except for fear of losing his job by reason of violation of the
Hatch Act.

186
 The Hatch Act defines active participation in political management or
political campaigns by cross-referring to the rules made by the Civil
Service Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office: Candidacy for a nomination or for

election to any National, State, county, or municipal office is not
permissible. The prohibition against political activity extends not
merely to formal announcement of candidacy but also to the
preliminaries leading to such announcement and to canvassing or
soliciting support or doing or permitting to be done any act in
furtherance of candidacy. The fact that candidacy, is merely passive
is immaterial; if an employee acquiesces in the efforts of friends in
furtherance of such candidacy such acquiescence constitutes an
infraction of the prohibitions against political activity. (italics
supplied)

Section 9(b) requires the immediate removal of violators and forbids the
use of appropriated funds thereafter to pay compensation to these
persons.[64]

(3) Broadrick was a class action brought by certain Oklahoma state

employees seeking a declaration of unconstitutionality of two sub-
paragraphs of Section 818 of Oklahomas Merit System of Personnel
Administration Act. Section 818 (7), the paragraph relevant to this
discussion, states that [n]o employee in the classified service shall be a
candidate for nomination or election to any paid public office Violation of
Section 818 results in dismissal from employment, possible criminal
sanctions and limited state employment ineligibility.

Consequently, it cannot be denied that Letter

Carriers and Broadrick effectively overruled Mancuso. By no stretch of the
imagination could Mancuso still be held operative, as Letter
Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and
(ii) were decided by a superior court, the United States Supreme Court. It was thus
not surprising for the First Circuit Court of Appeals the same court that
decided Mancuso to hold categorically and emphatically in Magill v.
Lynch[65] that Mancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office
in 1975. Pawtuckets Little Hatch Act prohibits city employees from engaging in a
broad range of political activities. Becoming a candidate for any city office is

187
specifically proscribed,[66] the violation being punished by removal from office or
immediate dismissal. The firemen brought an action against the city officials on the
ground that that the provision of the city charter was unconstitutional. However,
the court, fully cognizant of Letter Carriers and Broadrick, took the position
that Mancuso had since lost considerable vitality. It observed that the view
that political candidacy was a fundamental interest which could be infringed
upon only if less restrictive alternatives were not available, was a position
which was no longer viable, since the Supreme Court (finding that the
governments interest in regulating both the conduct and speech of its
employees differed significantly from its interest in regulating those of the
citizenry in general) had given little weight to the argument that prohibitions
against the coercion of government employees were a less drastic means to the
same end, deferring to the judgment of Congress, and applying a balancing
test to determine whether limits on political activity by public employees
substantially served government interests which were important enough to
outweigh the employees First Amendment rights.[67]

It must be noted that the Court of Appeals ruled in this manner even though
the election in Magill was characterized as nonpartisan, as it was reasonable for
the city to fear, under the circumstances of that case, that politically active
bureaucrats might use their official power to help political friends and hurt political
foes. Ruled the court:

The question before us is whether Pawtucket's charter

provision, which bars a city employee's candidacy in even a
nonpartisan city election, is constitutional. The issue compels us to
extrapolate two recent Supreme Court decisions, Civil Service
Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v.
Oklahoma. Both dealt with laws barring civil servants from partisan
political activity. Letter Carriers reaffirmed United Public Workers
v. Mitchell, upholding the constitutionality of the Hatch Act as to
federal employees. Broadrick sustained Oklahoma's Little Hatch
Act against constitutional attack, limiting its holding to Oklahoma's
construction that the Act barred only activity in partisan politics. In
Mancuso v. Taft, we assumed that proscriptions of candidacy in
nonpartisan elections would not be constitutional. Letter Carriers
and Broadrick compel new analysis.
xxxx

What we are obligated to do in this case, as the district court

recognized, is to apply the Courts interest balancing approach to
the kind of nonpartisan election revealed in this record. We believe
that the district court found more residual vigor in our opinion in
Mancuso v. Taft than remains after Letter Carriers. We have
particular reference to our view that political candidacy was a
fundamental interest which could be trenched upon only if less

188
 restrictive alternatives were not available. While this approach may
still be viable for citizens who are not government employees, the
Court in Letter Carriers recognized that the government's interest
in regulating both the conduct and speech of its employees differs
significantly from its interest in regulating those of the citizenry in
general. Not only was United Public Workers v. Mitchell
"unhesitatingly" reaffirmed, but the Court gave little weight to the
argument that prohibitions against the coercion of government
employees were a less drastic means to the same end, deferring to
the judgment of the Congress. We cannot be more precise than the
Third Circuit in characterizing the Court's approach as "some sort of
'balancing' process".[68] It appears that the government may place
limits on campaigning by public employees if the limits
substantially serve government interests that are "important" enough
to outweigh the employees' First Amendment rights. x x x (italics
supplied)

Upholding thus the constitutionality of the law in question, the Magill court
detailed the major governmental interests discussed in Letter Carriers and applied
them to the Pawtucket provision as follows:

In Letter Carriers[,] the first interest identified by the Court

was that of an efficient government, faithful to the Congress rather
than to party. The district court discounted this interest,
reasoningthat candidates in a local election would not likely be
committed to a state or national platform. This observation
undoubtedly has substance insofar as allegiance to broad policy
positions is concerned. But a different kind of possible political
intrusion into efficient administration could be thought to threaten
municipal government: not into broad policy decisions, but into the
particulars of administration favoritism in minute decisions
affecting welfare, tax assessments, municipal contracts and
purchasing, hiring, zoning, licensing, and inspections. Just as the
Court in Letter Carriersidentified a second governmental interest in
the avoidance of the appearance of "political justice" as to policy, so
there is an equivalent interest in avoiding the appearance of political
preferment in privileges, concessions, and benefits. The appearance
(or reality) of favoritism that the charter's authors evidently feared
is not exorcised by the nonpartisan character of the formal election
process. Where, as here, party support is a key to successful
campaigning, and party rivalry is the norm, the city might
reasonably fear that politically active bureaucrats would use their
official power to help political friends and hurt political foes. This
is not to say that the city's interest in visibly fair and effective
administration necessarily justifies a blanket prohibition of all
employee campaigning; if parties are not heavily involved in a

189
campaign, the danger of favoritism is less, for neither friend nor foe
is as easily identified.

A second major governmental interest identified in Letter

Carriers was avoiding the danger of a powerful political machine.
The Court had in mind the large and growing federal bureaucracy
and its partisan potential. The district court felt this was only a minor
threat since parties had no control over nominations. But in fact
candidates sought party endorsements, and party endorsements
proved to be highly effective both in determining who would emerge
from the primary election and who would be elected in the final
election. Under the prevailing customs, known party affiliation and
support were highly significant factors in Pawtucket elections. The
charter's authors might reasonably have feared that a politically
active public work force would give the incumbent party, and the
incumbent workers, an unbreakable grasp on the reins of power. In
municipal elections especially, the small size of the electorate and
the limited powers of local government may inhibit the growth of
interest groups powerful enough to outbalance the weight of a
partisan work force. Even when nonpartisan issues and candidacies
are at stake, isolated government employees may seek to influence
voters or their co-workers improperly; but a more real danger is that
a central party structure will mass the scattered powers of
government workers behind a single party platform or slate.
Occasional misuse of the public trust to pursue private political ends
is tolerable, especially because the political views of individual
employees may balance each other out. But party discipline
eliminates this diversity and tends to make abuse systematic. Instead
of a handful of employees pressured into advancing their immediate
superior's political ambitions, the entire government work force may
be expected to turn out for many candidates in every election.
In Pawtucket, where parties are a continuing presence in political
campaigns, a carefully orchestrated use of city employees in support
of the incumbent party's candidates is possible. The danger is
scarcely lessened by the openness of Pawtucket's nominating
procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter

Carriers was ensuring that employees achieve advancement on their
merits and that they be free from both coercion and the prospect of
favor from political activity. The district court did not address this
factor, but looked only to the possibility of a civil servant using his
position to influence voters, and held this to be no more of a threat
than in the most nonpartisan of elections. But we think that the
possibility of coercion of employees by superiors remains as strong
a factor in municipal elections as it was in Letter Carriers. Once

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 again, it is the systematic and coordinated exploitation of public
servants for political ends that a legislature is most likely to see as
the primary threat of employees' rights. Political oppression of
public employees will be rare in an entirely nonpartisan system.
Some superiors may be inclined to ride herd on the politics of their
employees even in a nonpartisan context, but without party officials
looking over their shoulders most supervisors will prefer to let
employees go their own ways.

In short, the government may constitutionally restrict its

employees' participation in nominally nonpartisan elections if
political parties play a large role in the campaigns. In the absence of
substantial party involvement, on the other hand, the interests
identified by the Letter Carriers Court lose much of their force.
While the employees' First Amendment rights would normally
outbalance these diminished interests, we do not suggest that they
would always do so. Even when parties are absent, many employee
campaigns might be thought to endanger at least one strong public
interest, an interest that looms larger in the context of municipal
elections than it does in the national elections considered in Letter
Carriers. The city could reasonably fear the prospect of a
subordinate running directly against his superior or running for a
position that confers great power over his superior. An employee of
a federal agency who seeks a Congressional seat poses less of a
direct challenge to the command and discipline of his agency than a
fireman or policeman who runs for mayor or city council. The
possibilities of internal discussion, cliques, and political bargaining,
should an employee gather substantial political support, are
considerable. (citations omitted)

The court, however, remanded the case to the district court for further
proceedings in respect of the petitioners overbreadth charge. Noting that
invalidating a statute for being overbroad is not to be taken lightly, much less to be
taken in the dark, the court held:

The governing case is Broadrick, which introduced the

doctrine of "substantial" overbreadth in a closely analogous case.
Under Broadrick, when one who challenges a law has engaged in
constitutionally unprotected conduct (rather than unprotected
speech) and when the challenged law is aimed at unprotected
conduct, "the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly
legitimate sweep." Two major uncertainties attend the doctrine: how
to distinguish speech from conduct, and how to define "substantial"
overbreadth. We are spared the first inquiry by Broadrick itself. The
plaintiffs in that case had solicited support for a candidate, and they

191
were subject to discipline under a law proscribing a wide range of
activities, including soliciting contributions for political candidates
and becoming a candidate. The Court found that this combination
required a substantial overbreadth approach. The facts of this case
are so similar that we may reach the same result without worrying
unduly about the sometimes opaque distinction between speech and
conduct.

The second difficulty is not so easily disposed

of. Broadrick found no substantial overbreadth in a statute
restricting partisan campaigning. Pawtucket has gone further,
banning participation in nonpartisan campaigns as well. Measuring
the substantiality of a statute's overbreadth apparently requires,
inter alia, a rough balancing of the number of valid applications
compared to the number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application that is far-
fetched does not deserve as much weight as one that is probable.
The question is a matter of degree; it will never be possible to say
that a ratio of one invalid to nine valid applications makes a law
substantially overbroad. Still, an overbreadth challenger has a duty
to provide the court with some idea of the number of potentially
invalid applications the statute permits. Often, simply reading the
statute in the light of common experience or litigated cases will
suggest a number of probable invalid applications. But this case is
different. Whether the statute is overbroad depends in large part on
the number of elections that are insulated from party rivalry yet
closed to Pawtucket employees. For all the record shows, every one
of the city, state, or federal elections in Pawtucket is actively
contested by political parties. Certainly the record suggests that
parties play a major role even in campaigns that often are entirely
nonpartisan in other cities. School committee candidates, for
example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find

overbreadth; indeed such a step is not to be taken lightly, much less
to be taken in the dark. On the other hand, the entire focus below, in
the short period before the election was held, was on the
constitutionality of the statute as applied. Plaintiffs may very well
feel that further efforts are not justified, but they should be afforded
the opportunity to demonstrate that the charter forecloses access to
a significant number of offices, the candidacy for which by
municipal employees would not pose the possible threats to
government efficiency and integrity which Letter Carriers, as we
have interpreted it, deems significant. Accordingly, we remand for
consideration of plaintiffs' overbreadth claim. (italics supplied,
citations omitted)

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 Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond
doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has
effectively been overruled.[69] As it is no longer good law,
the ponencias exhortation that [since] the Americans, from whom we copied the
provision in question, had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow suit is misplaced and
unwarranted.[70]

Accordingly, our assailed Decisions submission that the right to run for public office
is inextricably linked with two fundamental freedoms those of expression and
association lies on barren ground. American case law has in fact never recognized
a fundamental right to express ones political views through candidacy,[71] as to
invoke a rigorous standard of review.[72] Bart v. Telford[73]pointedly stated that
[t]he First Amendment does not in terms confer a right to run for public office, and
this court has held that it does not do so by implication either. Thus, ones interest in
seeking office, by itself, is not entitled to constitutional protection.[74] Moreover,
one cannot bring ones action under the rubric of freedom of association, absent any
allegation that, by running for an elective position, one is advancing the political
ideas of a particular set of voters.[75]

Prescinding from these premises, it is crystal clear that the provisions challenged in
the case at bar, are not violative of the equal protection clause. The deemed-resigned
provisions substantially serve governmental interests (i.e., (i) efficient civil service
faithful to the government and the people rather than to party; (ii) avoidance of the
appearance of political justice as to policy; (iii) avoidance of the danger of a
powerful political machine; and (iv) ensuring that employees achieve advancement
on their merits and that they be free from both coercion and the prospect of favor
from political activity). These are interests that are important enough to outweigh
the non-fundamental right of appointive officials and employees to seek elective
office.

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v.
Fashing[76] and Morial, et al. v. Judiciary Commission of the State
of Louisiana, et al.[77] to buttress his dissent. Maintaining that resign-to-run
provisions are valid only when made applicable to specified officials, he explains:

U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run

provisions when applied to specified or particular officials, as distinguished
from all others,[78] under a classification that is germane to the purposes of the
law. These resign-to-run legislations were not expressed in a general and
sweeping provision, and thus did not violate the test of being germane to the

193
 purpose of the law, the second requisite for a valid classification. Directed, as they
were, to particular officials, they were not overly encompassing as to be overbroad.
(emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The
resign-to-run provisions in these cases were upheld not because they referred to
specified or particular officials (vis--vis a general class); the questioned provisions
were found valid precisely because the Court deferred to legislative judgment
and found that a regulation is not devoid of a rational predicate simply because
it happens to be incomplete. In fact, the equal protection challenge
in Clements revolved around the claim that the State of Texas failed to explain
why some public officials are subject to the resign-to-run provisions, while others
are not. Ruled the United States Supreme Court:

Article XVI, 65, of the Texas Constitution provides that the holders of
certain offices automatically resign their positions if they become candidates for
any other elected office, unless the unexpired portion of the current term is one year
or less. The burdens that 65 imposes on candidacy are even less substantial than
those imposed by 19. The two provisions, of course, serve essentially the same state
interests. The District Court found 65 deficient, however, not because of the nature
or extent of the provision's restriction on candidacy, but because of the manner in
which the offices are classified. According to the District Court, the classification
system cannot survive equal protection scrutiny, because Texas has failed to
explain sufficiently why some elected public officials are subject to 65 and why
others are not. As with the case of 19, we conclude that 65 survives a challenge
under the Equal Protection Clause unless appellees can show that there is no
rational predicate to the classification scheme.

The history behind 65 shows that it may be upheld consistent with the "one
step at a time" approach that this Court has undertaken with regard to state
regulation not subject to more vigorous scrutiny than that sanctioned by the
traditional principles. Section 65 was enacted in 1954 as a transitional provision
applying only to the 1954 election. Section 65 extended the terms of those offices
enumerated in the provision from two to four years. The provision also staggered
the terms of other offices so that at least some county and local offices would be
contested at each election. The automatic resignation proviso to 65 was not added
until 1958. In that year, a similar automatic resignation provision was added in Art.
XI, 11, which applies to officeholders in home rule cities who serve terms longer
than two years. Section 11 allows home rule cities the option of extending the terms
of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the

State's electoral reforms of 1958. That the State did not go further in applying the
automatic resignation provision to those officeholders whose terms were not
extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning
of the State's lawmaking process forbidden by the Equal Protection Clause. A

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 regulation is not devoid of a rational predicate simply because it happens to be
incomplete. The Equal Protection Clause does not forbid Texas to restrict one
elected officeholder's candidacy for another elected office unless and until it places
similar restrictions on other officeholders. The provision's language and its history
belie any notion that 65 serves the invidious purpose of denying access to the
political process to identifiable classes of potential candidates. (citations omitted
and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that
there is no blanket approval of restrictions on the right of public employees to
become candidates for public office out of context. A correct reading of that line
readily shows that the Court only meant to confine its ruling to the facts of that case,
as each equal protection challenge would necessarily have to involve weighing
governmental interests vis--vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are
unquestionably entitled to the protection of the first and fourteenth amendments.
Nothing in today's decision should be taken to imply that public employees may be
prohibited from expressing their private views on controversial topics in a manner
that does not interfere with the proper performance of their public duties. In today's
decision, there is no blanket approval of restrictions on the right of public
employees to become candidates for public office. Nor do we approve any general
restrictions on the political and civil rights of judges in particular. Our holding is
necessarily narrowed by the methodology employed to reach it. A requirement that
a state judge resign his office prior to becoming a candidate for non-judicial office
bears a reasonably necessary relation to the achievement of the state's interest in
preventing the actuality or appearance of judicial impropriety. Such a requirement
offends neither the first amendment's guarantees of free expression and association
nor the fourteenth amendment's guarantee of equal protection of the laws. (italics
supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its
employment positions require restrictions on partisan political activities and which
may be left unregulated. And a State can hardly be faulted for attempting to limit
the positions upon which such restrictions are placed. (citations omitted)

V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth

195
 Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA
9369, and Section 66 of the Omnibus Election Code on equal protection ground, our
assailed Decision struck them down for being overbroad in two respects, viz.:

(1) The assailed provisions limit the candidacy of all civil servants holding
appointive posts without due regard for the type of position being held by
the employee seeking an elective post and the degree of influence that may
be attendant thereto;[79] and
(2) The assailed provisions limit the candidacy of any and all civil servants
holding appointive positions without due regard for the type of office being
sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of

Incumbent Appointive Officials Position, Valid

According to the assailed Decision, the challenged provisions of law are

overly broad because they apply indiscriminately to all civil servants holding
appointive posts, without due regard for the type of position being held by the
employee running for elective office and the degree of influence that may be
attendant thereto.

Its underlying assumption appears to be that the evils sought to be prevented

are extant only when the incumbent appointive official running for elective office
holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally

plausible, threat to the government posed by the partisan potential of a large and
growing bureaucracy: the danger of systematic abuse perpetuated by a powerful
political machine that has amassed the scattered powers of government workers so
as to give itself and its incumbent workers an unbreakable grasp on the reins of
power.[80] As elucidated in our prior exposition:[81]
Attempts by government employees to wield influence over others or to
make use of their respective positions (apparently) to promote their own candidacy
may seem tolerable even innocuous particularly when viewed in isolation from
other similar attempts by other government employees. Yet it would be decidedly

196
 foolhardy to discount the equally (if not more) realistic and dangerous possibility
that such seemingly disjointed attempts, when taken together, constitute a veiled
effort on the part of an emerging central party structure to advance its own agenda
through a carefully orchestrated use of [appointive and/or elective] officials coming
from various levels of the bureaucracy.

[T]he avoidance of such a politically active public work force which could
give an emerging political machine an unbreakable grasp on the reins of power is
reason enough to impose a restriction on the candidacies of all appointive public
officials without further distinction as to the type of positions being held by such
employees or the degree of influence that may be attendant thereto. (citations
omitted)

ii. Limitation on Candidacy

Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are
overly broad because they are made to apply indiscriminately to all civil servants
holding appointive offices, without due regard for the type of elective office being
sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.

This erroneous ruling is premised on the assumption that the concerns of a

truly partisan office and the temptations it fosters are sufficiently different from
those involved in an office removed from regular party politics [so as] to warrant
distinctive treatment,[82] so that restrictions on candidacy akin to those imposed by
the challenged provisions can validly apply only to situations in which the elective
office sought is partisan in character. To the extent, therefore, that such restrictions
are said to preclude even candidacies for nonpartisan elective offices, the challenged
restrictions are to be considered as overbroad.

Again, a careful study of the challenged provisions and related laws on the
matter will show that the alleged overbreadth is more apparent than real. Our
exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and
guidelines set forth therein refer to the filing of certificates of candidacy and
nomination of official candidates of registered political parties, in connection
with the May 10, 2010 National and Local Elections.[83] Obviously, these rules
and guidelines, including the restriction in Section 4(a) of Resolution 8678, were
issued specifically for purposes of the May 10, 2010 National and Local Elections,
which, it must be noted, are decidedly partisan in character. Thus, it is clear that

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 the restriction in Section 4(a) of RA 8678 applies only to the candidacies of
appointive officials vying for partisan elective posts in the May 10, 2010 National
and Local Elections. On this score, the overbreadth challenge leveled against
Section 4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of

the Omnibus Election Code, in conjunction with other related laws on the matter,
will confirm that these provisions are likewise not intended to apply to elections for
nonpartisan public offices.

The only elections which are relevant to the present inquiry are the elections for
barangay offices, since these are the only elections in this country which
involve nonpartisan public offices.[84]

In this regard, it is well to note that from as far back as the enactment of the
Omnibus Election Code in 1985, Congress has intended that these
nonpartisan barangay elections be governed by special rules, including a separate
rule on deemed resignations which is found in Section 39 of the Omnibus Election
Code. Said provision states:

Section 39. Certificate of Candidacy. No person shall be

elected punong barangay or kagawad ng sangguniang
barangay unless he files a sworn certificate of candidacy in
triplicate on any day from the commencement of the election period
but not later than the day before the beginning of the campaign
period in a form to be prescribed by the Commission. The candidate
shall state the barangay office for which he is a candidate.

xxxx

Any elective or appointive municipal, city, provincial or national

official or employee, or those in the civil or military service,
including those in government-owned or-controlled corporations,
shall be considered automatically resigned upon the filing of
certificate of candidacy for a barangay office.
Since barangay elections are governed by a separate deemed resignation
rule, under the present state of law, there would be no occasion to apply the
restriction on candidacy found in Section 66 of the Omnibus Election Code, and
later reiterated in the proviso of Section 13 of RA 9369, to any election other than
a partisan one. For this reason, the overbreadth challenge raised against Section 66
of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369
must also fail. [85]

In any event, even if we were to assume, for the sake of argument, that Section
66 of the Omnibus Election Code and the corresponding provision in Section 13 of

198
RA 9369 are general rules that apply also to elections for nonpartisan public offices,
the overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling only
partisan behavior has not received judicial imprimatur, because the general
proposition of the relevant US cases on the matter is simply that the government
has an interest in regulating the conduct and speech of its employees that differs
significantly from those it possesses in connection with regulation of the speech of
the citizenry in general.[86]

Moreover, in order to have a statute declared as unconstitutional or void on

its face for being overly broad, particularly where, as in this case, conduct and not
pure speech is involved, the overbreadth must not only be real, but substantial as
well, judged in relation to the statutes plainly legitimate sweep.[87]

In operational terms, measuring the substantiality of a statutes overbreadth

would entail, among other things, a rough balancing of the number of valid
applications compared to the number of potentially invalid applications.[88] In this
regard, some sensitivity to reality is needed; an invalid application that is far-
fetched does not deserve as much weight as one that is probable.[89] The question is
a matter of degree.[90] Thus, assuming for the sake of argument that the partisan-
nonpartisan distinction is valid and necessary such that a statute which fails to make
this distinction is susceptible to an overbreadth attack, the overbreadth challenge
presently mounted must demonstrate or provide this Court with some idea of the
number of potentially invalid elections (i.e. the number of elections that were
insulated from party rivalry but were nevertheless closed to appointive employees)
that may in all probability result from the enforcement of the statute.[91]

The state of the record, however, does not permit us to find overbreadth.
Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken
lightly, much less to be taken in the dark,[92]especially since an overbreadth finding
in this case would effectively prohibit the State from enforcing an otherwise valid
measure against conduct that is admittedly within its power to proscribe.[93]

This Court would do well to proceed with tiptoe caution, particularly when it
comes to the application of the overbreadth doctrine in the analysis of statutes that
purportedly attempt to restrict or burden the exercise of the right to freedom of
speech, for such approach is manifestly strong medicine that must be used sparingly,
and only as a last resort.[94]

In the United States, claims of facial overbreadth have been entertained only
where, in the judgment of the court, the possibility that protected speech of others
may be muted and perceived grievances left to fester (due to the possible inhibitory
effects of overly broad statutes) outweighs the possible harm to society in allowing

199
some unprotected speech or conduct to go unpunished.[95]Facial overbreadth has
likewise not been invoked where a limiting construction could be placed on the
challenged statute, and where there are readily apparent constructions that would
cure, or at least substantially reduce, the alleged overbreadth of the statute.[96]

In the case at bar, the probable harm to society in permitting incumbent

appointive officials to remain in office, even as they actively pursue elective posts,
far outweighs the less likely evil of having arguably protected candidacies blocked
by the possible inhibitory effect of a potentially overly broad statute.

In this light, the conceivably impermissible applications of the challenged

statutes which are, at best, bold predictions cannot justify invalidating these statutes
in toto and prohibiting the State from enforcing them against conduct that is, and has
for more than 100 years been, unquestionably within its power and interest to
proscribe.[97] Instead, the more prudent approach would be to deal with these
conceivably impermissible applications through case-by-case adjudication rather
than through a total invalidation of the statute itself.[98]

Indeed, the anomalies spawned by our assailed Decision have taken place. In
his Motion for Reconsideration, intervenor Drilon stated that a number of high-
ranking Cabinet members had already filed their Certificates of Candidacy without
relinquishing their posts.[99] Several COMELEC election officers had likewise filed
their Certificates of Candidacy in their respective provinces.[100] Even the Secretary
of Justice had filed her certificate of substitution for representative of the first district
of Quezon province last December 14, 2009[101] even as her position as Justice
Secretary includes supervision over the City and Provincial Prosecutors,[102] who, in
turn, act as Vice-Chairmen of the respective Boards of Canvassers.[103] The Judiciary
has not been spared, for a Regional Trial Court Judge in the South has thrown his
hat into the political arena. We cannot allow the tilting of our electoral playing field
in their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678
and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus
Election Code, are not unconstitutionally overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents

and the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this
Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE this
Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC

200
Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of
Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

LOUIS BAROK C. BIRAOGO, G.R. No. 192935

Petitioner,

- versus -

THE PHILIPPINE TRUTH

COMMISSION OF 2010,
Respondent.
x-----------------------x
REP. EDCEL C. LAGMAN, G.R. No. 193036
REP. RODOLFO B. ALBANO, JR.,
REP. SIMEON A. Present:
DATUMANONG, and REP.
ORLANDO B. FUA, SR., CORONA, C.J.,
Petitioners, CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
EXECUTIVE SECRETARY SERENO, JJ.
PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND Promulgated:
MANAGEMENT SECRETARY
FLORENCIO B. ABAD, December 7, 2010
Respondents.

x -------------------------------------------------------------------------------------- x

201
 DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to
them.

--- Justice Jose P. Laurel[1]

The role of the Constitution cannot be overlooked. It is through the Constitution that
the fundamental powers of government are established, limited and defined, and by
which these powers are distributed among the several departments.[2] The
Constitution is the basic and paramount law to which all other laws must conform
and to which all persons, including the highest officials of the land, must
defer.[3] Constitutional doctrines must remain steadfast no matter what may be the
tides of time. It cannot be simply made to sway and accommodate the call of
situations and much more tailor itself to the whims and caprices of government and
the people who run it.[4]

For consideration before the Court are two consolidated cases[5] both of which
essentially assail the validity and constitutionality of Executive Order No. 1, dated
July 30, 2010, entitled Creating the Philippine Truth Commission of 2010.

The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen and
taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative
power of Congress under Section 1, Article VI of the Constitution[6] as it usurps the

202
constitutional authority of the legislature to create a public office and to appropriate
funds therefor.[7]

The second case, G.R. No. 193036, is a special civil action for certiorari and
prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A.
Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent
members of the House of Representatives.

The genesis of the foregoing cases can be traced to the events prior to the historic
May 2010 elections, when then Senator Benigno Simeon Aquino III declared his
staunch condemnation of graft and corruption with his slogan, Kung walang corrupt,
walang mahirap. The Filipino people, convinced of his sincerity and of his ability
to carry out this noble objective, catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need
for a special body to investigate reported cases of graft and corruption allegedly
committed during the previous administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed
Executive Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth
Commission). Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines

solemnly enshrines the principle that a public office is a public trust and mandates
that public officers and employees, who are servants of the people, must at all times
be accountable to the latter, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this

principle and notorious violation of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the political,
economic, and social life of a nation; in a very special way it inflicts untold
misfortune and misery on the poor, the marginalized and underprivileged sector of
society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and
undermined the peoples trust and confidence in the Government and its
institutions;

203
WHEREAS, there is an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to put a
closure to them by the filing of the appropriate cases against those involved, if
warranted, and to deter others from committing the evil, restore the peoples faith
and confidence in the Government and in their public servants;

WHEREAS, the Presidents battlecry during his campaign for the Presidency in the
last elections kung walang corrupt, walang mahirap expresses a solemn pledge
that if elected, he would end corruption and the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating

and finding out the truth concerning the reported cases of graft and corruption
during the previous administration, and which will recommend the prosecution of
the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise
known as the Revised Administrative Code of the Philippines, gives the President
the continuing authority to reorganize the Office of the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the

Republic of the Philippines, by virtue of the powers vested in me by law, do hereby
order:

SECTION 1. Creation of a Commission. There is hereby created

the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the COMMISSION, which shall primarily seek and find the truth on, and toward
this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed
by public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that
the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will
act as an independent collegial body.

SECTION 2. Powers and Functions. The Commission, which shall have all the
powers of an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption referred to in Section 1,
involving third level public officers and higher, their co-principals, accomplices
and accessories from the private sector, if any, during the previous administration
and thereafter submit its finding and recommendations to the President, Congress
and the Ombudsman.
In particular, it shall:

a) Identify and determine the reported cases of such graft and corruption which
it will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the cases
of large scale corruption which it has chosen to investigate, and to this end require
any agency, official or employee of the Executive Branch, including government-

204
owned or controlled corporations, to produce documents, books, records and other
papers;

c) Upon proper request or representation, obtain information and documents

from the Senate and the House of Representatives records of investigations
conducted by committees thereof relating to matters or subjects being investigated
by the Commission;

d) Upon proper request and representation, obtain information from the courts,
including the Sandiganbayan and the Office of the Court Administrator,
information or documents in respect to corruption cases filed with the
Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a state

witness to ensure that the ends of justice be fully served, that such person who
qualifies as a state witness under the Revised Rules of Court of the Philippines be
admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public officers and employees and
their private sector co-principals, accomplices or accessories, if any, when in the
course of its investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent applicable laws;

h) Call upon any government investigative or prosecutorial agency such as the

Department of Justice or any of the agencies under it, and the Presidential Anti-
Graft Commission, for such assistance and cooperation as it may require in the
discharge of its functions and duties;

i) Engage or contract the services of resource persons, professionals and other

personnel determined by it as necessary to carry out its mandate;

j) Promulgate its rules and regulations or rules of procedure it deems necessary

to effectively and efficiently carry out the objectives of this Executive Order and to
ensure the orderly conduct of its investigations, proceedings and hearings,
including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and necessary in

connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. x x x.

SECTION 4. Detail of Employees. x x x.

SECTION 5. Engagement of Experts. x x x

SECTION 6. Conduct of Proceedings. x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.
SECTION 8. Protection of Witnesses/Resource Persons. x x x.

205
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any
government official or personnel who, without lawful excuse, fails to appear upon
subpoena issued by the Commission or who, appearing before the Commission
refuses to take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative disciplinary action.
Any private person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. x x x.
SECTION 11. Budget for the Commission. The Office of the President shall provide
the necessary funds for the Commission to ensure that it can exercise its powers,
execute its functions, and perform its duties and responsibilities as effectively,
efficiently, and expeditiously as possible.
SECTION 12. Office. x x x.

SECTION 13. Furniture/Equipment. x x x.

SECTION 14. Term of the Commission. The Commission shall accomplish its
mission on or before December 31, 2012.

SECTION 15. Publication of Final Report. x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment
of the President there is a need to expand the mandate of the Commission as
defined in Section 1 hereof to include the investigation of cases and instances of
graft and corruption during the prior administrations, such mandate may be so
extended accordingly by way of a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is declared

unconstitutional, the same shall not affect the validity and effectivity of the other
provisions hereof.

SECTION 19. Effectivity. This Executive Order shall take effect immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary

Nature of the Truth Commission

206
 As can be gleaned from the above-quoted provisions, the Philippine Truth
Commission (PTC) is a mere ad hoc body formed under the Office of the President
with the primary task to investigate reports of graft and corruption committed by
third-level public officers and employees, their co-principals, accomplices and
accessories during the previous administration, and thereafter to submit its finding
and recommendations to the President, Congress and the Ombudsman. Though it
has been described as an independent collegial body, it is essentially an entity within
the Office of the President Proper and subject to his control. Doubtless, it constitutes
a public office, as an ad hoc body is one.[8]

To accomplish its task, the PTC shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is
not, however, a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle,
or render awards in disputes between contending parties. All it can do is gather,
collect and assess evidence of graft and corruption and make recommendations. It
may have subpoena powers but it has no power to cite people in contempt, much
less order their arrest. Although it is a fact-finding body, it cannot determine from
such facts if probable cause exists as to warrant the filing of an information in our
courts of law. Needless to state, it cannot impose criminal, civil or administrative
penalties or sanctions.
The PTC is different from the truth commissions in other countries which have
been created as official, transitory and non-judicial fact-finding bodies to establish
the facts and context of serious violations of human rights or of international
humanitarian law in a countrys past.[9] They are usually established by states
emerging from periods of internal unrest, civil strife or authoritarianism to serve as
mechanisms for transitional justice.

Truth commissions have been described as bodies that share the following
characteristics: (1) they examine only past events; (2) they investigate patterns of
abuse committed over a period of time, as opposed to a particular event; (3) they are
temporary bodies that finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially sanctioned, authorized
or empowered by the State.[10] Commissions members are usually empowered to
conduct research, support victims, and propose policy recommendations to prevent
recurrence of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge them. They
207
may aim to prepare the way for prosecutions and recommend institutional
reforms.[11]

Thus, their main goals range from retribution to reconciliation. The

Nuremburg and Tokyo war crime tribunals are examples of a retributory or
vindicatory body set up to try and punish those responsible for crimes against
humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation
Commission of South Africa, the principal function of which was to heal the wounds
of past violence and to prevent future conflict by providing a cathartic experience
for victims.

The PTC is a far cry from South Africas model. The latter placed more
emphasis on reconciliation than on judicial retribution, while the marching order of
the PTC is the identification and punishment of perpetrators. As one writer [12] puts
it:

The order ruled out reconciliation. It translated the

Draconian code spelled out by Aquino in his inaugural speech: To
those who talk about reconciliation, if they mean that they would
like us to simply forget about the wrongs that they have committed
in the past, we have this to say: There can be no reconciliation
without justice. When we allow crimes to go unpunished, we give
consent to their occurring over and over again.

The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners
asked the Court to declare it unconstitutional and to enjoin the PTC from performing
its functions. A perusal of the arguments of the petitioners in both cases shows that
they are essentially the same. The petitioners-legislators summarized them in the
following manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates

the power of the Congress to create a public office and appropriate
funds for its operation.

208
 (b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1 because the
delegated authority of the President to structurally reorganize the Office
of the President to achieve economy, simplicity and efficiency does not
include the power to create an entirely new public office which was
hitherto inexistent like the Truth Commission.

(c) E.O. No. 1 illegally amended the Constitution and pertinent

statutes when it vested the Truth Commission with quasi-judicial
powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the Department
of Justice created under the Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively

targets for investigation and prosecution officials and personnel of the
previous administration as if corruption is their peculiar species even as
it excludes those of the other administrations, past and present, who
may be indictable.

(e) The creation of the Philippine Truth Commission of 2010

violates the consistent and general international practice of four decades
wherein States constitute truth commissions to exclusively investigate
human rights violations, which customary practice forms part of the
generally accepted principles of international law which the Philippines
is mandated to adhere to pursuant to the Declaration of Principles
enshrined in the Constitution.

(f) The creation of the Truth Commission is an exercise in

futility, an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda to
mistakenly impress the people that widespread poverty will altogether
vanish if corruption is eliminated without even addressing the other
major causes of poverty.

(g) The mere fact that previous commissions were not

constitutionally challenged is of no moment because neither laches nor
estoppel can bar an eventual question on the constitutionality and
validity of an executive issuance or even a statute.[13]

209
 In their Consolidated Comment,[14] the respondents, through the Office of the
Solicitor General (OSG), essentially questioned the legal standing of petitioners and
defended the assailed executive order with the following arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create

a public office because the Presidents executive power and power of
control necessarily include the inherent power to conduct investigations
to ensure that laws are faithfully executed and that, in any event, the
Constitution, Revised Administrative Code of 1987 (E.O. No.
292), [15] Presidential Decree (P.D.) No. 1416[16] (as amended by P.D.
No. 1772), R.A. No. 9970,[17] and settled jurisprudence that authorize
the President to create or form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate

funds because there is no appropriation but a mere allocation of funds
already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the

functions of the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ), because it is a fact-finding body and not
a quasi-judicial body and its functions do not duplicate, supplant or
erode the latters jurisdiction.

4] The Truth Commission does not violate the equal protection

clause because it was validly created for laudable purposes.

The OSG then points to the continued existence and validity of other executive
orders and presidential issuances creating similar bodies to justify the creation of the
PTC such as Presidential Complaint and Action Commission (PCAC) by President
Ramon B. Magsaysay, Presidential Committee on Administrative Performance
Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency on
Reform and Government Operations (PARGO) by President Ferdinand E.
Marcos.[18]
From the petitions, pleadings, transcripts, and memoranda, the following are
the principal issues to be resolved:

210
 1. Whether or not the petitioners have the legal standing
to file their respective petitions and question Executive Order No. 1;

2. Whether or not Executive Order No. 1 violates the

principle of separation of powers by usurping the powers of Congress
to create and to appropriate funds for public offices, agencies and
commissions;
3. Whether or not Executive Order No. 1 supplants the powers of
the Ombudsman and the DOJ;

4. Whether or not Executive Order No. 1 violates the equal

protection clause; and

5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive

Order No. 1, the Court needs to ascertain whether the requisites for a valid exercise
of its power of judicial review are present.

Like almost all powers conferred by the Constitution, the power of judicial review
is subject to limitations, to wit: (1) there must be an actual case or controversy calling
for the exercise of judicial power; (2) the person challenging the act must have the
standing to question the validity of the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.[19]

Among all these limitations, only the legal standing of the petitioners has been put
at issue.

Legal Standing of the Petitioners

211
 The OSG attacks the legal personality of the petitioners-legislators to file their
petition for failure to demonstrate their personal stake in the outcome of the case. It
argues that the petitioners have not shown that they have sustained or are in danger
of sustaining any personal injury attributable to the creation of the PTC. Not
claiming to be the subject of the commissions investigations, petitioners will not
sustain injury in its creation or as a result of its proceedings.[20]

The Court disagrees with the OSG in questioning the legal standing of the
petitioners-legislators to assail Executive Order No. 1. Evidently, their petition
primarily invokes usurpation of the power of the Congress as a body to which they
belong as members. This certainly justifies their resolve to take the cudgels for
Congress as an institution and present the complaints on the usurpation of their
power and rights as members of the legislature before the Court. As held
in Philippine Constitution Association v. Enriquez,[21]

To the extent the powers of Congress are impaired, so is the

power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial injury,
which can be questioned by a member of Congress. In such a case,
any member of Congress can have a resort to the courts.

Indeed, legislators have a legal standing to see to it that the prerogative,

powers and privileges vested by the Constitution in their office remain
inviolate. Thus, they are allowed to question the validity of any official action which,
to their mind, infringes on their prerogatives as legislators.[22]

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing
to question the creation of the PTC and the budget for its operations. [23] It
emphasizes that the funds to be used for the creation and operation of the
commission are to be taken from those funds already appropriated by Congress.
Thus, the allocation and disbursement of funds for the commission will not entail
congressional action but will simply be an exercise of the Presidents power over
contingent funds.

212
 As correctly pointed out by the OSG, Biraogo has not shown that he sustained,
or is in danger of sustaining, any personal and direct injury attributable to the
implementation of Executive Order No. 1. Nowhere in his petition is an assertion of
a clear right that may justify his clamor for the Court to exercise judicial power and
to wield the axe over presidential issuances in defense of the Constitution. The case
of David v. Arroyo[24] explained the deep-seated rules on locus standi. Thus:

Locus standi is defined as a right of appearance in a court of

justice on a given question. In private suits, standing is governed by
the real-parties-in interest rule as contained in Section 2, Rule 3 of
the 1997 Rules of Civil Procedure, as amended. It provides
that every action must be prosecuted or defended in the name of the
real party in interest. Accordingly, the real-party-in interest is the
party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit. Succinctly put, the
plaintiffs standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public

suits. Here, the plaintiff who asserts a public right in assailing an
allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently
from any other person. He could be suing as a stranger, or in the
category of a citizen, or taxpayer. In either case, he has to
adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a citizen
or taxpayer.

Case law in most jurisdictions now allows both citizen and

taxpayer standing in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayers suit is in a different category from the plaintiff in a
citizens suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: In matter of mere public
right, howeverthe people are the real partiesIt is at least the right,
if not the duty, of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a public
grievance be remedied. With respect to taxpayers suits, Terr v.

213
 Jordan held that the right of a citizen and a taxpayer to maintain
an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied.

However, to prevent just about any person from seeking

judicial interference in any official policy or act with which he
disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court
laid down the more stringent direct injury test in Ex Parte Levitt,
later reaffirmed in Tileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine
the validity of an executive or legislative action, he must show that
he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the
public.

This Court adopted the direct injury test in our

jurisdiction. In People v. Vera, it held that the person who impugns
the validity of a statute must have a personal and substantial interest
in the case such that he has sustained, or will sustain direct injury as
a result. The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila Race Horse
Trainers Association v. De la Fuente, Pascual v. Secretary of
Public Works and Anti-Chinese League of the Philippines v.
Felix. [Emphases included. Citations omitted]

Notwithstanding, the Court leans on the doctrine that the rule on standing is a
matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary
citizens, taxpayers, and legislators when the public interest so requires, such as when
the matter is of transcendental importance, of overreaching significance to society,
or of paramount public interest.[25]

Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court held
that in cases of paramount importance where serious constitutional questions are
involved, the standing requirements may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,[27]ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders although
they had only an indirect and general interest shared in common with the public.
214
 The OSG claims that the determinants of transcendental importance [28] laid
down in CREBA v. ERC and Meralco[29] are non-existent in this case. The Court,
however, finds reason in Biraogos assertion that the petition covers matters of
transcendental importance to justify the exercise of jurisdiction by the Court. There
are constitutional issues in the petition which deserve the attention of this Court in
view of their seriousness, novelty and weight as precedents. Where the issues are of
transcendental and paramount importance not only to the public but also to the Bench
and the Bar, they should be resolved for the guidance of all.[30] Undoubtedly, the
Filipino people are more than interested to know the status of the Presidents first
effort to bring about a promised change to the country. The Court takes cognizance
of the petition not due to overwhelming political undertones that clothe the issue in
the eyes of the public, but because the Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with overreaching significance to
society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth
Commission is a public office and not merely an adjunct body of the Office of the
President.[31] Thus, in order that the President may create a public office he must be
empowered by the Constitution, a statute or an authorization vested in him by law.
According to petitioner, such power cannot be presumed[32] since there is no
provision in the Constitution or any specific law that authorizes the President to
create a truth commission.[33] He adds that Section 31 of the Administrative Code of
1987, granting the President the continuing authority to reorganize his office, cannot
serve as basis for the creation of a truth commission considering the aforesaid
provision merely uses verbs such as reorganize, transfer, consolidate, merge, and
abolish.[34] Insofar as it vests in the President the plenary power to reorganize the
Office of the President to the extent of creating a public office, Section 31 is
inconsistent with the principle of separation of powers enshrined in the Constitution
and must be deemed repealed upon the effectivity thereof.[35]

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation

of a public office lies within the province of Congress and not with the executive
branch of government. They maintain that the delegated authority of the President to

215
reorganize under Section 31 of the Revised Administrative Code: 1) does not permit
the President to create a public office, much less a truth commission; 2) is limited to
the reorganization of the administrative structure of the Office of the President; 3) is
limited to the restructuring of the internal organs of the Office of the President
Proper, transfer of functions and transfer of agencies; and 4) only to achieve
simplicity, economy and efficiency.[36] Such continuing authority of the President to
reorganize his office is limited, and by issuing Executive Order No. 1, the President
overstepped the limits of this delegated authority.

The OSG counters that there is nothing exclusively legislative about the
creation by the President of a fact-finding body such as a truth commission. Pointing
to numerous offices created by past presidents, it argues that the authority of the
President to create public offices within the Office of the President Proper has long
been recognized.[37] According to the OSG, the Executive, just like the other two
branches of government, possesses the inherent authority to create fact-finding
committees to assist it in the performance of its constitutionally mandated functions
and in the exercise of its administrative functions.[38] This power, as the OSG
explains it, is but an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article VII of the
Constitution.[39]

It contends that the President is necessarily vested with the power to conduct
fact-finding investigations, pursuant to his duty to ensure that all laws are enforced
by public officials and employees of his department and in the exercise of his
authority to assume directly the functions of the executive department, bureau and
office, or interfere with the discretion of his officials.[40] The power of the President
to investigate is not limited to the exercise of his power of control over his
subordinates in the executive branch, but extends further in the exercise of his other
powers, such as his power to discipline subordinates,[41] his power for rule making,
adjudication and licensing purposes[42] and in order to be informed on matters which
he is entitled to know.[43]

The OSG also cites the recent case of Banda v. Ermita,[44] where it was held
that the President has the power to reorganize the offices and agencies in the
executive department in line with his constitutionally granted power of control and

216
by virtue of a valid delegation of the legislative power to reorganize executive offices
under existing statutes.

Thus, the OSG concludes that the power of control necessarily includes the
power to create offices. For the OSG, the President may create the PTC in order to,
among others, put a closure to the reported large scale graft and corruption in the
government.[45]

The question, therefore, before the Court is this: Does the creation of the PTC
fall within the ambit of the power to reorganize as expressed in Section 31 of the
Revised Administrative Code? Section 31 contemplates reorganization as limited by
the following functional and structural lines: (1) restructuring the internal
organization of the Office of the President Proper by abolishing, consolidating or
merging units thereof or transferring functions from one unit to another; (2)
transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under the Office
of the President to any other Department/Agency or vice versa. Clearly, the
provision refers to reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions. These point to situations
where a body or an office is already existent but a modification or alteration thereof
has to be effected.The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is in the
negative.

To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the plainest meaning
attributable to the term restructure an alteration of an existing structure. Evidently,
the PTC was not part of the structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon.
Executive Secretary,[46]

But of course, the list of legal basis authorizing the President

to reorganize any department or agency in the executive branch
does not have to end here. We must not lose sight of the very source
of the power that which constitutes an express grant of power.
Under Section 31, Book III of Executive Order No. 292 (otherwise
217
 known as the Administrative Code of 1987), "the President, subject
to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the Office of
the President." For this purpose, he may transfer the functions of
other Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation
of offices, or abolition thereof by reason of economy or redundancy
of functions." It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of
control, authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under the
Office of the President. Hence, it is subject to the Presidents
continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the Presidents
power of control. Control is essentially the power to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former with that of the latter.[47] Clearly, the power of
control is entirely different from the power to create public offices. The former is
inherent in the Executive, while the latter finds basis from either a valid delegation
from Congress, or his inherent duty to faithfully execute the laws.

The question is this, is there a valid delegation of power from Congress,

empowering the President to create a public office?

According to the OSG, the power to create a truth commission pursuant to the
above provision finds statutory basis under P.D. 1416, as amended by P.D. No.
1772.[48] The said law granted the President the continuing authority to reorganize
the national government, including the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and classify functions,
services and activities, transfer appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has
been invoked in several cases such as Larin v. Executive Secretary.[49]

218
 The Court, however, declines to recognize P.D. No. 1416 as a justification for
the President to create a public office. Said decree is already stale, anachronistic and
inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority
to reorganize the administrative structure of the national government including the
power to create offices and transfer appropriations pursuant to one of the purposes
of the decree, embodied in its last Whereas clause:

WHEREAS, the transition towards the parliamentary form

of government will necessitate flexibility in the organization of the
national government.

Clearly, as it was only for the purpose of providing manageability and

resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First Congress, as expressly
provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the
Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted

was the last whereas clause of P.D.
1416 says it was enacted to prepare
the transition from presidential to
parliamentary. Now, in a
parliamentary form of
government, the legislative and
executive powers are fused,
correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was

issued. Now would you agree with
me that P.D. 1416 should not be
considered effective anymore upon
the promulgation, adoption,
ratification of the 1987
Constitution.

219
 SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416,
Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to

reorganize the entire National
Government is deemed repealed, at
least, upon the adoption of the
1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]

While the power to create a truth commission cannot pass muster on the basis of
P.D. No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds
justification under Section 17, Article VII of the Constitution, imposing upon the
President the duty to ensure that the laws are faithfully executed. Section 17 reads:

Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the

three principal branches of government is a grant of all powers inherent in them. The
Presidents power to conduct investigations to aid him in ensuring the faithful
execution of laws in this case, fundamental laws on public accountability and
transparency is inherent in the Presidents powers as the Chief Executive. That the
authority of the President to conduct investigations and to create bodies to execute
this power is not explicitly mentioned in the Constitution or in statutes does not mean
that he is bereft of such authority.[51] As explained in the landmark case of Marcos
v. Manglapus:[52]

x x x. The 1987 Constitution, however, brought back the

presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with
provision for checks and balances.

It would not be accurate, however, to state that "executive

power" is the power to enforce the laws, for the President is head of

220
 state as well as head of government and whatever powers inhere in
such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President.It
also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's
foreign relations.

On these premises, we hold the view that although the 1987

Constitution imposes limitations on the exercise of specific powers
of the President, it maintains intact what is traditionally considered
as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the

government that is neither legislative nor judicial has to be
executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully
executed. As stated above, the powers of the President are not limited to those
specific powers under the Constitution.[53] One of the recognized powers of the
President granted pursuant to this constitutionally-mandated duty is the power to
create ad hoc committees. This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus, in Department of Health v.
Camposano,[54] the authority of the President to issue Administrative Order No. 298,
creating an investigative committee to look into the administrative charges filed
against the employees of the Department of Health for the anomalous purchase of
medicines was upheld. In said case, it was ruled:

The Chief Executives power to create the Ad hoc Investigating

Committee cannot be doubted. Having been constitutionally
granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure that
all executive officials and employees faithfully comply with the
law. With AO 298 as mandate, the legality of the investigation is
sustained. Such validity is not affected by the fact that the

221
 investigating team and the PCAGC had the same composition, or
that the former used the offices and facilities of the latter in
conducting the inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies

to exist is to allow an inquiry into matters which the President is entitled to know so
that he can be properly advised and guided in the performance of his duties relative
to the execution and enforcement of the laws of the land. And if history is to be
revisited, this was also the objective of the investigative bodies created in the past
like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission
and the Zenarosa Commission. There being no changes in the government structure,
the Court is not inclined to declare such executive power as non-existent just because
the direction of the political winds have changed.

On the charge that Executive Order No. 1 transgresses the power of Congress
to appropriate funds for the operation of a public office, suffice it to say that there
will be no appropriation but only an allotment or allocations of existing funds
already appropriated. Accordingly, there is no usurpation on the part of the
Executive of the power of Congress to appropriate funds. Further, there is no need
to specify the amount to be earmarked for the operation of the commission because,
in the words of the Solicitor General, whatever funds the Congress has provided for
the Office of the President will be the very source of the funds for the
commission.[55] Moreover, since the amount that would be allocated to the PTC shall
be subject to existing auditing rules and regulations, there is no impropriety in the
funding.

Power of the Truth Commission to Investigate

The Presidents power to conduct investigations to ensure that laws are faithfully
executed is well recognized. It flows from the faithful-execution clause of the
Constitution under Article VII, Section 17 thereof.[56] As the Chief Executive, the
president represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department.[57]

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Invoking this authority, the President constituted the PTC to primarily investigate
reports of graft and corruption and to recommend the appropriate action. As
previously stated, no quasi-judicial powers have been vested in the said body as it
cannot adjudicate rights of persons who come before it. It has been said that Quasi-
judicial powers involve the power to hear and determine questions of fact to which
the legislative policy is to apply and to decide in accordance with the standards laid
down by law itself in enforcing and administering the same law.[58] In simpler terms,
judicial discretion is involved in the exercise of these quasi-judicial power, such that
it is exclusively vested in the judiciary and must be clearly authorized by the
legislature in the case of administrative agencies.

The distinction between the power to investigate and the power to adjudicate
was delineated by the Court in Cario v. Commission on Human Rights.[59] Thus:

"Investigate," commonly understood, means to examine,

explore, inquire or delve or probe into, research on, study. The
dictionary definition of "investigate" is "to observe or study closely:
inquire into systematically: "to search or inquire into: x x to subject
to an official probe x x: to conduct an official inquiry." The purpose
of investigation, of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of
settling, deciding or resolving a controversy involved in the facts
inquired into by application of the law to the facts established by
the inquiry.
The legal meaning of "investigate" is essentially the same:
"(t)o follow up step by step by patient inquiry or observation. To
trace or track; to search into; to examine and inquire into with care
and accuracy; to find out by careful inquisition; examination; the
taking of evidence; a legal inquiry;" "to inquire; to make an
investigation," "investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial
or otherwise, for the discovery and collection of facts concerning a
certain matter or matters."
"Adjudicate," commonly or popularly understood, means to
adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle.
The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised:

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 x x to pass judgment on: settle judicially: x x act as judge." And
"adjudge" means "to decide or rule upon as a judge or with judicial
or quasi-judicial powers: x x to award or grant judicially in a case of
controversy x x."
In the legal sense, "adjudicate" means: "To settle in the
exercise of judicial authority. To determine finally. Synonymous
with adjudge in its strictest sense;" and "adjudge" means: "To pass
on judicially, to decide, settle or decree, or to sentence or condemn.
x x. Implies a judicial determination of a fact, and the entry of a
judgment." [Italics included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to the judicial

function of a court of justice, or even a quasi-judicial agency or office. The function
of receiving evidence and ascertaining therefrom the facts of a controversy is not a
judicial function. To be considered as such, the act of receiving evidence and arriving
at factual conclusions in a controversy must be accompanied by the authority
of applying the law to the factual conclusions to the end that the controversy may be
decided or resolved authoritatively, finally and definitively, subject to appeals or
modes of review as may be provided by law.[60] Even respondents themselves admit
that the commission is bereft of any quasi-judicial power.[61]

Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or
the DOJ or erode their respective powers. If at all, the investigative function of the
commission will complement those of the two offices. As pointed out by the
Solicitor General, the recommendation to prosecute is but a consequence of the
overall task of the commission to conduct a fact-finding investigation.[62] The actual
prosecution of suspected offenders, much less adjudication on the merits of the
charges against them,[63] is certainly not a function given to the commission. The
phrase, when in the course of its investigation, under Section 2(g), highlights this
fact and gives credence to a contrary interpretation from that of the petitioners. The
function of determining probable cause for the filing of the appropriate complaints
before the courts remains to be with the DOJ and the Ombudsman.[64]

At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not
exclusive but is shared with other similarly authorized government agencies. Thus,
in the case of Ombudsman v. Galicia,[65] it was written:

224
 This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared
with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit
trial courts. The power to conduct preliminary investigation on
charges against public employees and officials is likewise
concurrently shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the Ombudsman
retains concurrent jurisdiction with the Office of the President and
the local Sanggunians to investigate complaints against local
elective officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to
investigate criminal cases under Section 15 (1) of R.A. No. 6770, which states:

(1) Investigate and prosecute on its own or on complaint by

any person, any act or omission of any public officer or employee,
office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in the exercise of its
primary jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of such
cases. [Emphases supplied]

The act of investigation by the Ombudsman as enunciated above contemplates

the conduct of a preliminary investigation or the determination of the existence of
probable cause. This is categorically out of the PTCs sphere of functions. Its power
to investigate is limited to obtaining facts so that it can advise and guide the President
in the performance of his duties relative to the execution and enforcement of the laws
of the land. In this regard, the PTC commits no act of usurpation of the Ombudsmans
primordial duties.

The same holds true with respect to the DOJ. Its authority under Section 3 (2),
Chapter 1, Title III, Book IV in the Revised Administrative Code is by no means
exclusive and, thus, can be shared with a body likewise tasked to investigate the
commission of crimes.

225
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the
PTC are to be accorded conclusiveness. Much like its predecessors, the Davide
Commission, the Feliciano Commission and the Zenarosa Commission, its findings
would, at best, be recommendatory in nature. And being so, the Ombudsman and the
DOJ have a wider degree of latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not deprived of their mandated duties
but will instead be aided by the reports of the PTC for possible indictments for
violations of graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative
power of the President, the Court finds difficulty in upholding the constitutionality
of Executive Order No. 1 in view of its apparent transgression of the equal protection
clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution. Section 1 reads:

Section 1. No person shall be deprived of life, liberty, or

property without due process of law, nor shall any person be denied
the equal protection of the laws.

The petitioners assail Executive Order No. 1 because it is violative of this

constitutional safeguard. They contend that it does not apply equally to all members
of the same class such that the intent of singling out the previous administration as
its sole object makes the PTC an adventure in partisan hostility.[66] Thus, in order to
be accorded with validity, the commission must also cover reports of graft and
corruption in virtually all administrations previous to that of former President
Arroyo.[67]

The petitioners argue that the search for truth behind the reported cases of
graft and corruption must encompass acts committed not only during the
administration of former President Arroyo but also during prior administrations
where the same magnitude of controversies and anomalies[68] were reported to have
been committed against the Filipino people. They assail the classification formulated
by the respondents as it does not fall under the recognized exceptions because first,

226
there is no substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who abused their
public office for personal gain; and second, the selective classification is not
germane to the purpose of Executive Order No. 1 to end corruption.[69] In order to
attain constitutional permission, the petitioners advocate that the commission should
deal with graft and grafters prior and subsequent to the Arroyo administration with
the strong arm of the law with equal force.[70]

Position of respondents

According to respondents, while Executive Order No. 1 identifies the previous

administration as the initial subject of the investigation, following Section 17
thereof, the PTC will not confine itself to cases of large scale graft and corruption
solely during the said administration.[71] Assuming arguendo that the commission
would confine its proceedings to officials of the previous administration, the
petitioners argue that no offense is committed against the equal protection clause for
the segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification based on
substantial distinctions and is germane to the evils which the Executive Order seeks
to correct.[72] To distinguish the Arroyo administration from past administrations, it
recited the following:

First. E.O. No. 1 was issued in view of widespread reports of

large scale graft and corruption in the previous administration which
have eroded public confidence in public institutions. There is,
therefore, an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and
to put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the
evil, restore the peoples faith and confidence in the Government and in
their public servants.

Second. The segregation of the preceding administration as the

object of fact-finding is warranted by the reality that unlike with
administrations long gone, the current administration will most likely
bear the immediate consequence of the policies of the previous
administration.

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 Third. The classification of the previous administration as a
separate class for investigation lies in the reality that the evidence of
possible criminal activity, the evidence that could lead to recovery of
public monies illegally dissipated, the policy lessons to be learned to
ensure that anti-corruption laws are faithfully executed, are more easily
established in the regime that immediately precede the current
administration.

Fourth. Many administrations subject the transactions of their

predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due diligence
and good housekeeping by a nascent administration like the
Presidential Commission on Good Government (PCGG), created by the
late President Corazon C. Aquino under Executive Order No. 1 to
pursue the recovery of ill-gotten wealth of her predecessor former
President Ferdinand Marcos and his cronies, and
the Saguisag Commission created by former President Joseph Estrada
under Administrative Order No, 53, to form an ad-hoc and independent
citizens committee to investigate all the facts and circumstances
surrounding Philippine Centennial projects of his predecessor, former
President Fidel V. Ramos.[73] [Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted partiality
or prejudice, the sharper weapon to cut it down is the equal protection clause.[74]

According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed.[75] It requires public bodies and institutions
228
to treat similarly situated individuals in a similar manner.[76] The purpose of the equal
protection clause is to secure every person within a states jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of
a statue or by its improper execution through the states duly constituted
authorities.[77] In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental objective.[78]

The equal protection clause is aimed at all official state actions, not just those
of the legislature.[79] Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of a state
denying equal protection of the laws, through whatever agency or whatever guise is
taken. [80]

It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality among
equals as determined according to a valid classification. Indeed, the equal protection
clause permits classification. Such classification, however, to be valid must pass the
test of reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and
[81]
(4) It applies equally to all members of the same class. Superficial differences do
not make for a valid classification.[82]

For a classification to meet the requirements of constitutionality, it must

include or embrace all persons who naturally belong to the class. [83] The
classification will be regarded as invalid if all the members of the class are not
similarly treated, both as to rights conferred and obligations imposed. It is not
necessary that the classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics in equal
degree. Substantial similarity will suffice; and as long as this is achieved, all those
covered by the classification are to be treated equally. The mere fact that an
individual belonging to a class differs from the other members, as long as that class
is substantially distinguishable from all others, does not justify the non-application
of the law to him.[84]

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 The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It must be of
such a nature as to embrace all those who may thereafter be in similar circumstances
and conditions. It must not leave out or underinclude those that should otherwise fall
into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers'
Union[85] and reiterated in a long line of cases,[86]
The guaranty of equal protection of the laws is not a guaranty
of equality in the application of the laws upon all citizens of the
state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid discrimination as
to things that are different. It does not prohibit legislation which is
limited either in the object to which it is directed or by the territory
within which it is to operate.

The equal protection of the laws clause of the Constitution allows

classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that
it be reasonable, which means that the classification should be
based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not
be limited to existing conditions only; and that it must apply equally
to each member of the class. This Court has held that the standard
is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably
arbitrary. [Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck
down as violative of the equal protection clause. The clear mandate of the envisioned

230
truth commission is to investigate and find out the truth concerning the reported
cases of graft and corruption during the previous administration[87] only. The intent
to single out the previous administration is plain, patent and manifest. Mention of it
has been made in at least three portions of the questioned executive order.
Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to

investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure justice for all;

SECTION 1. Creation of a Commission. There is hereby created

the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the COMMISSION, which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption
of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from
the private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be
served without fear or favor.

SECTION 2. Powers and Functions. The Commission, which shall

have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices
and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration is but
just a member of a class, that is, a class of past administrations. It is not a class of its
own. Not to include past administrations similarly situated constitutes arbitrariness
which the equal protection clause cannot sanction. Such discriminating

231
differentiation clearly reverberates to label the commission as a vehicle for
vindictiveness and selective retribution.

Though the OSG enumerates several differences between the Arroyo

administration and other past administrations, these distinctions are not substantial
enough to merit the restriction of the investigation to the previous administration
only. The reports of widespread corruption in the Arroyo administration cannot be
taken as basis for distinguishing said administration from earlier administrations
which were also blemished by similar widespread reports of impropriety. They are
not inherent in, and do not inure solely to, the Arroyo administration. As Justice
Isagani Cruz put it, Superficial differences do not make for a valid classification.[88]

The public needs to be enlightened why Executive Order No. 1 chooses to

limit the scope of the intended investigation to the previous administration only. The
OSG ventures to opine that to include other past administrations, at this point, may
unnecessarily overburden the commission and lead it to lose its effectiveness.[89] The
reason given is specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or end corruption and the evil it breeds.[90]

The probability that there would be difficulty in unearthing evidence or that

the earlier reports involving the earlier administrations were already inquired into is
beside the point. Obviously, deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC
expected to conduct simultaneous investigations of previous administrations, given
the bodys limited time and resources. The law does not require the impossible (Lex
non cogit ad impossibilia).[91]

Given the foregoing physical and legal impossibility, the Court logically
recognizes the unfeasibility of investigating almost a centurys worth of graft
cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary
classification. The PTC, to be true to its mandate of searching for the truth, must not
exclude the other past administrations. The PTC must, at least, have the authority to
investigate all past administrations. While reasonable prioritization is permitted, it
should not be arbitrary lest it be struck down for being unconstitutional. In the often
quoted language of Yick Wo v. Hopkins,[92]
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 Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public authority with
an evil eye and an unequal hand, so as practically to make unjust and
illegal discriminations between persons in similar circumstances,
material to their rights, the denial of equal justice is still within the
prohibition of the constitution.[Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope
is limited. The Court, however, is of the considered view that although its focus is
restricted, the constitutional guarantee of equal protection under the laws should not
in any way be circumvented. The Constitution is the fundamental and paramount
law of the nation to which all other laws must conform and in accordance with which
all private rights determined and all public authority administered.[93] Laws that do
not conform to the Constitution should be stricken down for being
unconstitutional.[94]While the thrust of the PTC is specific, that is, for investigation
of acts of graft and corruption, Executive Order No. 1, to survive, must be read
together with the provisions of the Constitution. To exclude the earlier
administrations in the guise of substantial distinctions would only confirm the
petitioners lament that the subject executive order is only an adventure in partisan
hostility. In the case of US v. Cyprian,[95] it was written: A rather limited number of
such classifications have routinely been held or assumed to be arbitrary; those
include: race, national origin, gender, political activity or membership in a political
party, union activity or membership in a labor union, or more generally the exercise
of first amendment rights.

To reiterate, in order for a classification to meet the requirements of

constitutionality, it must include or embrace all persons who naturally belong to the
class.[96] Such a classification must not be based on existing circumstances only, or
so constituted as to preclude additions to the number included within a class, but
must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and
circumstances which are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be brought under the

233
influence of the law and treated by it in the same way as are the members of the
class.[97]

The Court is not unaware that mere underinclusiveness is not fatal to the
validity of a law under the equal protection clause.[98] Legislation is not
unconstitutional merely because it is not all-embracing and does not include all the
evils within its reach.[99] It has been written that a regulation challenged under the
equal protection clause is not devoid of a rational predicate simply because it
happens to be incomplete.[100] In several instances, the underinclusiveness was not
considered a valid reason to strike down a law or regulation where the purpose can
be attained in future legislations or regulations. These cases refer to the step by step
process.[101] With regard to equal protection claims, a legislature does not run the
risk of losing the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might conceivably have been
attacked.[102]

In Executive Order No. 1, however, there is no inadvertence. That the

previous administration was picked out was deliberate and intentional as can be
gleaned from the fact that it was underscored at least three times in the assailed
executive order. It must be noted that Executive Order No. 1 does not even mention
any particular act, event or report to be focused on unlike the investigative
commissions created in the past. The equal protection clause is violated by
purposeful and intentional discrimination.[103]

To disprove petitioners contention that there is deliberate discrimination, the

OSG clarifies that the commission does not only confine itself to cases of large scale
graft and corruption committed during the previous administration.[104] The OSG
points to Section 17 of Executive Order No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the

judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior
administrations, such mandate may be so extended accordingly by way of
a supplemental Executive Order.

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 The Court is not convinced. Although Section 17 allows the President the
discretion to expand the scope of investigations of the PTC so as to include the acts
of graft and corruption committed in other past administrations, it does not guarantee
that they would be covered in the future. Such expanded mandate of the commission
will still depend on the whim and caprice of the President. If he would decide not to
include them, the section would then be meaningless. This will only fortify the fears
of the petitioners that the Executive Order No. 1 was crafted to tailor-fit the
prosecution of officials and personalities of the Arroyo administration.[105]

The Court tried to seek guidance from the pronouncement in the case of Virata
v. Sandiganbayan,[106] that the PCGG Charter (composed of Executive Orders Nos.
1, 2 and 14) does not violate the equal protection clause. The decision, however, was
devoid of any discussion on how such conclusory statement was arrived at, the
principal issue in said case being only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the
Supreme Court, in the exercise of its constitutionally mandated power of Judicial
Review with respect to recent initiatives of the legislature and the executive
department, is exercising undue interference. Is the Highest Tribunal, which is
expected to be the protector of the Constitution, itself guilty of violating fundamental
tenets like the doctrine of separation of powers? Time and again, this issue has been
addressed by the Court, but it seems that the present political situation calls for it to
once again explain the legal basis of its action lest it continually be accused of being
a hindrance to the nations thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the

1987 Constitution, is vested with Judicial Power that 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

235
of abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government.

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial

review which is the power to declare a treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation
unconstitutional. This power also includes the duty to rule on the constitutionality of
the application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations. These provisions, however, have
been fertile grounds of conflict between the Supreme Court, on one hand, and the
two co-equal bodies of government, on the other. Many times the Court has been
accused of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a good source
of enlightenment, to wit: And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not
in reality nullify or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them. [107]

Thus, the Court, in exercising its power of judicial review, is not imposing its
own will upon a co-equal body but rather simply making sure that any act of
government is done in consonance with the authorities and rights allocated to it by
the Constitution. And, if after said review, the Court finds no constitutional
violations of any sort, then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said act as void and
unconstitutional.

It cannot be denied that most government actions are inspired with noble
intentions, all geared towards the betterment of the nation and its people. But then
again, it is important to remember this ethical principle: The end does not justify the
means. No matter how noble and worthy of admiration the purpose of an act, but if
the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.[108] The Court cannot just

236
turn a blind eye and simply let it pass. It will continue to uphold the Constitution and
its enshrined principles.

The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its strength
nor greed for power debase its rectitude.[109]

Lest it be misunderstood, this is not the death knell for a truth commission as
nobly envisioned by the present administration. Perhaps a revision of the executive
issuance so as to include the earlier past administrations would allow it to pass
the test of reasonableness and not be an affront to the Constitution. Of all the
branches of the government, it is the judiciary which is the most interested in
knowing the truth and so it will not allow itself to be a hindrance or obstacle to its
attainment. It must, however, be emphasized that the search for the truth must be
within constitutional bounds for ours is still a government of laws and not of men. [110]

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is

hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal
protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist
from carrying out the provisions of Executive Order No. 1.

G.R. No. 95367 May 23, 1995

COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and ELISA

RIVERA, petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.

MENDOZA, J.:

This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces tecum and
orders issued by respondent Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera, as
chief accountant and record custodian, respectively, of the Economic Intelligence and Investigation

237
Bureau (EIIB) to produce "all documents relating to Personal Services Funds for the year 1988 and
all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988" and to enjoin him
from enforcing his orders.

Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is Chief
of the EIIB's Budget and Fiscal Management Division. The subpoena duces tecum was issued by
the Ombudsman in connection with his investigation of an anonymous letter alleging that funds
representing savings from unfilled positions in the EIIB had been illegally disbursed. The letter,
purporting to have been written by an employee of the EIIB and a concerned citizen, was addressed
to the Secretary of Finance, with copies furnished several government offices, including the Office of
the Ombudsman.

The letter reads in pertinent parts:

1 These are the things that I have been observing. During the
implementation of E.O. 127 on May 1, 1988, one hundred ninety
(190) personnel were dismissed. Before that implementation, we had
a monthly savings of P500,000.00 from unfilled plantilla position plus
the implementation of RA 6683 wherein seventy (70) regular
employees availed a total amount of P1,400,000.00 was saved from
the government monthly. The question is, how do they used or
disbursed this savings? The EIIB has a syndicate headed by the
Chief of Budget Division who is manipulating funds and also the brain
of the so called "ghost agents" or the "Emergency Intelligence
Agents" (EIA). The Commissioner of EIIB has a biggest share on this.
Among his activities are:

a) Supporting RAM wherein he is involved. He gives

big amount especially during the Dec. Failed coup.

b) Payment for thirty five (30) mini UZI's.

c) Payment for the purchased of Maxima '87 for

personal used of the Commissioner.

d) Another observation was the agents under the

Director of NCR EIIB is the sole operating unit within
Metro Manila which was approved by no less than the
Commissioner due to anomalous activities of almost
all agents assigned at the central office directly under
the Commissioner. Retired Brig. Gen. Almonte as one
of the Anti-Graft board member of the Department of
Finance should not tolerate this. However, the
Commissioner did not investigate his own men
instead, he placed them under the 15-30 payroll.

e) Many more which are personal.

2. Sir, my question is this. Can your good office investigate EII

intelligence funds particularly Personal Services (01) Funds? I
wonder why the Dep't of Budget & Mgmt. cannot compel EIIB to
submit an actual filled up position because almost half of it are vacant

238
 and still they are releasing it. Are EIIB plantilla position classified? It is
included in the Personal Services Itemization (PSI) and I believe it is
not classified and a ruling from Civil Service Commission that EIIB is
not exempted from Civil Service. Another info, when we had salary
differential last Oct '88 all money for the whole plantilla were released
and from that alone, Millions were saved and converted to ghost
agents of EIA.

3. Another thing that I have observed was the Chief Budget Division
possesses high caliber firearms such as a mini UZI, Armalite rifle and
two (2) 45 cal. pistol issued to him by the Assistant Commissioner
wherein he is not an agent of EIIB and authorized as such according
to memorandum order number 283 signed by the President of the
Republic of the Philippines effective 9 Jan. 1990.

Another observation was when EIIB agents apprehended a certain

civilian who possesses numerous assorted high powered firearms.
Agents plus one personnel from the legal proclaimed only five (5)
firearms and the remaining was pilfered by them.

Another observation is almost all EIIB agents collects payroll from the
big time smuggler syndicate monthly and brokers every week for
them not to be apprehended.

Another observation is the commissioner allocates funds coming from

the intelligence funds to the media to sustain their good image of the
bureau.

In his comment 1 on the letter-complaint, petitioner Almonte denied that as a result of the separation
of personnel, the EIIB had made some savings. He averred that the only funds released to his
agency by the Department of Budget and Management (DBM) were those corresponding to 947
plantilla positions which were filled. He also denied that there were "ghost agents" in the EIIB and
claimed that disbursements for "open" (i.e., "overt" personnel) and "closed" (i.e., "covert" personnel)
plantillas of the agency had been cleared by the Commission on Audit (COA); that the case of the 30
Uzis had already been investigated by Congress, where it was shown that it was not the EIIB but an
agent who had spent for the firearms and they were only loaned to the EIIB pending appropriation by
Congress; that, contrary to the charge that a Maxima car had been purchased for his use, he was
using a government issued car from the NICA; that it was his prerogative as Commissioner to
"ground" agents in the EIIB main office so that they could be given reorientation and retraining; that
the allegation that the EIIB operatives pilfered smuggled firearms was without factual basis because
the firearms were the subject of seizure proceedings before the Collector of Customs, Port of Manila;
that the EIIB had been uncompromising toward employees found involved in anomalous activities;
and that intelligence funds had not been used for media propaganda and if media people went to the
EIIB it was because of newsworthy stories. Petitioner asked that the complaint be dismissed and the
case considered closed.

Similarly petitioner Perez, budget chief of the EIIB, denied in his comment 2 dated April 3, 1990 that
savings had been realized from the implementation of E.O. No. 127, since the DBM provided
allocations for only the remaining 947 personnel. He said that the disbursement of funds for the
plantilla positions for "overt" and "covert" personnel had been cleared by the COA and that the high-
powered firearms had been issued for the protection of EIIB personnel attending court hearings and
the Finance Officer in withdrawing funds from the banks.

239
The Graft Investigation Officer of the Ombudsman's office, Jose F. Saño, found the comments
unsatisfactory, being "unverified and plying only on generalizations without meeting specifically the
points raised by complainant as constitutive of the alleged anomalies." 3 He, therefore, asked for
authority to conduct a preliminary investigation. Anticipating the grant of his request, he issued a
subpoena 4 to petitioners Almonte and Perez, requiring them to submit their counter-affidavits and
the affidavits of their witnesses, as well as a subpoena duces tecum 5 to the Chief of the EIIB's
Accounting Division ordering him to bring "all documents relating to Personal Services Funds for the
year 1988 and all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988."

Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum. In his
Order dated June 15, 1990, 6 respondent Ombudsman granted the motion to quash the subpoena in
view of the fact that there were no affidavits filed against petitioners. But he denied their motion to
quash the subpoena duces tecum. He ruled that petitioners were not being forced to produce
evidence against themselves, since the subpoena duces tecum was directed to the Chief
Accountant, petitioner Nerio Rogado. In addition the Ombudsman ordered the Chief of the Records
a Section of the EIIB, petitioner Elisa Rivera, to produce before the investigator "all documents
relating to Personnel Service Funds, for the year 1988, and all documents, salary vouchers for the
whole plantilla of the EIIB for 1988, within ten (10) days from receipt hereof."

Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera were
EIIB employees under their supervision and that the Ombudsman was doing indirectly what he could
not do directly, i.e., compelling them (petitioners Almonte and Perez) to produce evidence against
themselves.

Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990. Hence, this
petition which questions the orders of June 15, 1990 and August 6, 1990 of respondent
Ombudsman.

To put this case in perspective it should be stated at the outset that it does not concern a demand by
a citizen for information under the freedom of information guarantee of the Constitution. 7 Rather it
concerns the power of the Office of the Ombudsman to obtain evidence in connection with an
investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government. Thus
petitioners raise the following issues: 8

I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN

UNSIGNED AND UNVERIFIED LETTER COMPLAINT IS AN
"APPROPRIATE CASE" WITHIN THE CONCEPT OF THE
CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE
PETITIONERS BY VIRTUE OF HIS SUBPOENA DUCES
TECUM TO PRODUCE TO HIM "ALL DOCUMENTS RELATING TO
PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE
PLANTILLA OF EIIB FOR 1988."

II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO

PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE
PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND,
THEREFORE, BEYOND THE REACH OF PUBLIC RESPONDENT'S
SUBPOENA DUCES TECUM.

I.

240
There are several subsidiary issues raised by petitioners, but the principal ones revolve on the
question whether petitioners can be ordered to produce documents relating to personal services and
salary vouchers of EIIB employees on the plea that such documents are classified. Disclosure of the
documents in question is resisted on the ground that "knowledge of EIIB's documents relative to its
Personal Services Funds and its plantilla . . . will necessarily [lead to] knowledge of its operations,
movements, targets, strategies, and tactics and the whole of its being" and this could "destroy the
EIIB." 9

Petitioners do not question the power of the Ombudsman to issue a subpoena duces tecum nor the
relevancy or materiality of the documents required to be produced, to the pending investigation in
the Ombudsman's office. Accordingly, the focus of discussion should be on the Government's claim
of privilege.

A.

At common law a governmental privilege against disclosure is recognized with respect to state
secrets bearing on military, diplomatic and similar matters. This privilege is based upon public
interest of such paramount importance as in and of itself transcending the individual interests of a
private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights. 10

In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme Court
recognized the right of the President to the confidentiality of his conversations and correspondence,
which it likened to "the claim of confidentiality of judicial deliberations." Said the Court in United
States v. Nixon: 11

The expectation of a President to the confidentiality of his conversations and

correspondence, like the claim of confidentiality of judicial deliberations, for example,
has all the values to which we accord deference for the privacy of all citizens and,
added to those values, is the necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would
be unwilling to express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The privilege is fundamental
to the operation of the government and inextricably rooted in the separation of
powers under the Constitution. . . .

Thus, the Court for the first time gave executive privilege a constitutional status and a new name,
although not necessarily a new birth. 12

"The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to the fact
that Justices of the U.S. Supreme Court and judges of lower federal courts have traditionally treated
their working papers and judicial notes as private property. A 1977 proposal in the U.S. Congress
that Justices and judges of lower federal courts "should be encouraged to make such arrangements
as will assure the preservation and eventual availability of their personal papers, especially the
deposit of their papers in the same depository they select for [their] Public Papers" 13 was rebuffed by
the Justices who, in a letter to the Chairman of the Subcommittee on Regulation and Government
Information of the U.S. Senate, referred to "difficult concerns respecting the appropriate separation
that must be maintained between the legislative branch and this Court." 14

There are, in addition to such privileges, statutorily-created ones such as the Government's privilege
to withhold the identity of persons who furnish information of violations of laws. 15

241
With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme Court
as follows:

Judicial control over the evidence in a case cannot be abdicated to the caprice of
executive officers. Yet we will not go so far as to say that the court may automatically
require a complete disclosure to the judge before the claim of privilege will be
accepted in any case. It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable danger that compulsion of the
evidence will expose military matters which, in the interest of national security,
should not be divulged. When this is the case, the occasion for the privilege is
appropriate, and the court should not jeopardize the security which the privilege is
meant to protect by insisting upon an examination of the evidence, even by the judge
alone, in chambers. . . . In each case, the showing of necessity which is made will
determine how far the court should probe in satisfying itself that the occasion for
invoking the privilege is appropriate. Where there is a strong showing of necessity,
the claim of privilege should not be lightly accepted, but even the most compelling
necessity cannot overcome the claim of privilege if the court is ultimately satisfied
that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim
of privilege, made under the circumstances of this case, will have to prevail. 16

On the other hand, where the claim of confidentiality does not rest on the need to protect military,
diplomatic or other national security secrets but on a general public interest in the confidentiality of
his conversations, courts have declined to find in the Constitution an absolute privilege of the
President against a subpoena considered essential to the enforcement of criminal laws. 17

B.

In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the
production of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the gathering
and evaluation of intelligence reports and information regarding "illegal activities affecting the
national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, dollar
salting." 18 Consequently, while in cases which involve state secrets it may be sufficient to determine
from the circumstances of the case that there is reasonable danger that compulsion of the evidence
will expose military matters without compelling production, 19 no similar excuse can be made for a
privilege resting on other considerations.

Nor has our attention been called to any law or regulation which considers personnel records of the
EIIB as classified information. To the contrary, COA Circular No. 88-293, which petitioners invoke to
support their contention that there is adequate safeguard against misuse of public funds, provides
that the "only item of expenditure which should be treated strictly confidential" is that which refers to
the "purchase of information and payment of rewards." Thus, part V, No. 7 of the Circular reads:

The only item of expenditure which should be treated as strictly confidential because
it falls under the category of classified information is that relating to purchase of
information and payment of rewards. However, reasonable records should be
maintained and kept for inspection of the Chairman, Commission on Audit or his duly
authorized representative. All other expenditures are to be considered unclassified
supported by invoices, receipts and other documents, and, therefore, subject to
reasonable inquiry by the Chairman or his duly authorized representative. 20

242
 It should be noted that the regulation requires that "reasonable records" be kept justifying the
confidential or privileged character of the information relating to informers. There are no such
reasonable records in this case to substitute for the records claimed to be confidential.

The other statutes and regulations 21 invoked by petitioners in support of their contention that the
documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate
the confidential nature of the EIIB's functions, but they do not exempt the EIIB from the duty to
account for its funds to the proper authorities. Indeed by denying that there were savings made from
certain items in the agency and alleging that the DBM had released to the EIIB only the allocations
needed for the 947 personnel retained after its reorganization, petitioners in effect invited inquiry into
the veracity of their claim. If, as petitioners claim, the subpoenaed records have been examined by
the COA and found by it to be regular in all respects, there is no reason why they cannot be shown
to another agency of the government which by constitutional mandate is required to look into any
complaint concerning public office.

On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB were
filled by fictitious persons and that the allotments for these items in 1988 were used for illegal
purposes. The plantilla and other personnel records are relevant to his investigation. He and his
Deputies are designated by the Constitution "protectors of the people" and as such they are required
by it "to act promptly on complaints in any form or manner against public officials or employees of
the Government, or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporation." 22

His need for the documents thus outweighs the claim of confidentiality of petitioners. What is more,
while there might have been compelling reasons for the claim of privilege in 1988 when it was
asserted by petitioners, now, seven years later, these reasons may have been attenuated, if they
have not in fact ceased. The agents whose identities could not then be revealed may have ceased
from the service of the EIIB, while the covert missions to which they might have been deployed
might either have been accomplished or abandoned. On the other hand, the Ombudsman's duty to
investigate the complaint that there were in 1988 unfilled positions in the EIIB for which continued
funding was received by its officials and put to illegal use, remains.

Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision
would only justify ordering their inspection in camera but not their nonproduction. However, as
concession to the nature of the functions of the EIIB and just to be sure no information of a
confidential character is disclosed, the examination of records in this case should be made in strict
confidence by the Ombudsman himself. Reference may be made to the documents in any decision
or order which the Ombudsman may render or issue but only to the extent that it will not reveal
covert activities of the agency. Above all, there must be a scrupulous protection of the documents
delivered.

With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting claims of
the parties is achieved. It is not amiss to state that even matters of national security have been
inquired into in appropriate in camera proceedings by the courts. In Lansang v. Garcia 23 this Court
held closed door sessions, with only the immediate parties and their counsel present, to determine
claims that because of subversion there was imminent danger to public safety warranting the
suspension of the writ of habeas corpus in 1971. Again in Marcos v. Manglapus 24 the Court met
behind closed doors to receive military briefings on the threat posed to national security by the return
to the country of the former President and his family. In the United States, a similar inquiry into the
danger to national security as a result of the publication of classified documents on the Vietnam war
was upheld by the U.S. Supreme Court. 25 We see no reason why similar safeguards cannot be
made to enable an agency of the Government, like the Office of the Ombudsman, to carry out its

243
constitutional duty to protect public interests 26 while insuring the confidentiality of classified
documents.

C.

Petitioners contend that under Art. XI, § 13(4) the Ombudsman can act only "in any appropriate
case, and subject to such limitations as may be provided by law" and that because the complaint in
this case is unsigned and unverified, the case is not an appropriate one. This contention lacks merit.
As already stated, the Constitution expressly enjoins the Ombudsman to act on any complaint filed
"in any form or manner" concerning official acts or omissions. Thus, Art. XI, § 12 provides:

The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall in appropriate cases, notify
the complainants of the action taken and the result thereof. (Emphasis added)

Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in § 26(2):

The Office of the Ombudsman shall receive complaints from any source in whatever
form concerning an official act or omission. It shall act on the complaint immediately
and if it finds the same entirely baseless, it shall dismiss the same and inform the
complainant of such dismissal citing the reasons therefor. If it finds a reasonable
ground to investigate further, it shall first furnish the respondent public officer or
employee with a summary of the complaint and require him to submit a written
answer within seventy-two hours from receipt thereof. If the answer is found
satisfactory, it shall dismiss the case. (Emphasis added)

Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony given at a fact-finding
investigation and charges made in a pleading in a case in court constituted a sufficient basis for the
Ombudsman to commence investigation, because a formal complaint was really not necessary.

Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case" in Art.
XI, § 12 means any case concerning official act or omission which is alleged to be "illegal, unjust,
improper, or inefficient." 28 The phrase "subject to such limitations as may be provided by law" refers
to such limitations as may be provided by Congress or, in the absence thereof, to such limitations as
may be imposed by the courts. Such limitations may well include a requirement that the investigation
be concluded in camera, with the public excluded, as exception to the general nature of the
proceedings in the Office of the Ombudsman. 29 A reconciliation is thereby made between the
demands of national security and the requirement of accountability enshrined in the Constitution. 30

What has been said above disposes of petitioners' contention that the anonymous letter-complaint
against them is nothing but a vexatious prosecution. It only remains to say that the general
investigation in the Ombudsman' s office is precisely for the purpose of protecting those against
whom a complaint is filed against hasty, malicious, and oppressive prosecution as much as securing
the State from useless and expensive trials. There may also be benefit resulting from such limited in
camera inspection in terms of increased public confidence that the privilege is not being abused and
increased likelihood that no abuse is in fact occurring.

II.

244
Nor is there violation of petitioner's right to the equal protection of the laws. Petitioners complain that
"in all forum and tribunals . . . the aggrieved parties . . . can only hale respondents via their verified
complaints or sworn statements with their identities fully disclosed," while in proceedings before the
Office of the Ombudsman anonymous letters suffice to start an investigation. In the first place, there
can be no objection to this procedure because it is provided in the Constitution itself. In the second
place, it is apparent that in permitting the filing of complaints "in any form and in a manner," the
framers of the Constitution took into account the well-known reticence of the people which keep
them from complaining against official wrongdoings. As this Court had occasion to point out, the
Office of the Ombudsman is different from the other investigatory and prosecutory agencies of the
government because those subject to its jurisdiction are public officials who, through official pressure
and influence, can quash, delay or dismiss investigations held against them. 31 On the other hand
complainants are more often than not poor and simple folk who cannot afford to hire lawyers. 32

III.

Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners' right
against self-incrimination. It is enough to state that the documents required to be produced in this
case are public records and those to whom the subpoena duces tecum is directed are government
officials in whose possession or custody the documents are. Moreover, if, as petitioners claim the
disbursement by the EIIB of funds for personal service has already been cleared by the COA, there
is no reason why they should object to the examination of the documents by respondent
Ombudsman.

WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of subpoenaed
documents be made personally in camera by the Ombudsman, and with all the safeguards outlined
in this decision.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno
and Vitug, JJ., concur.

Francisco, J., is on leave.

G.R. No. L-23794 February 17, 1968

ORMOC SUGAR COMPANY, INC., plaintiff-appellant,

vs.
THE TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF ORMOC CITY, HON.
ESTEBAN C. CONEJOS as Mayor of Ormoc City and ORMOC CITY, defendants-appellees.

Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee, Carreon & Tañada for plaintiff-
appellant.
Ramon O. de Veyra for defendants-appellees.

BENGZON, J.P., J.:

On January 29, 1964, the Municipal Board of Ormoc City passed 1 Ordinance No. 4, Series of
1964, imposing "on any and all productions of centrifugal sugar milled at the Ormoc Sugar

245
Company, Inc., in Ormoc City a municipal tax equivalent to one per centum (1%) per export sale to
the United States of America and other foreign countries." 2

Payments for said tax were made, under protest, by Ormoc Sugar Company, Inc. on March
20, 1964 for P7,087.50 and on April 20, 1964 for P5,000, or a total of P12,087.50.

On June 1, 1964, Ormoc Sugar Company, Inc. filed before the Court of First Instance of Leyte,
with service of a copy upon the Solicitor General, a complaint 3 against the City of Ormoc as well as
its Treasurer, Municipal Board and Mayor, alleging that the afore-stated ordinance is unconstitutional
for being violative of the equal protection clause (Sec. 1[1], Art. III, Constitution) and the rule of
uniformity of taxation (Sec. 22[1]), Art. VI, Constitution), aside from being an export tax forbidden
under Section 2287 of the Revised Administrative Code. It further alleged that the tax is neither a
production nor a license tax which Ormoc City under Section 15-kk of its charter and under Section 2
of Republic Act 2264, otherwise known as the Local Autonomy Act, is authorized to impose; and that
the tax amounts to a customs duty, fee or charge in violation of paragraph 1 of Section 2 of Republic
Act 2264 because the tax is on both the sale and export of sugar.

Answering, the defendants asserted that the tax ordinance was within defendant city's power
to enact under the Local Autonomy Act and that the same did not violate the afore-cited
constitutional limitations. After pre-trial and submission of the case on memoranda, the Court of First
Instance, on August 6, 1964, rendered a decision that upheld the constitutionality of the ordinance
and declared the taxing power of defendant chartered city broadened by the Local Autonomy Act to
include all other forms of taxes, licenses or fees not excluded in its charter.

Appeal therefrom was directly taken to Us by plaintiff Ormoc Sugar Company, Inc. Appellant
alleges the same statutory and constitutional violations in the aforesaid taxing ordinance mentioned
earlier.

Section 1 of the ordinance states: "There shall be paid to the City Treasurer on any and all
productions of centrifugal sugar milled at the Ormoc Sugar Company, Incorporated, in Ormoc City, a
municipal tax equivalent to one per centum (1%) per export sale to the United States of America and
other foreign countries." Though referred to as a tax on the export of centrifugal sugar produced at
Ormoc Sugar Company, Inc. For production of sugar alone is not taxable; the only time the tax
applies is when the sugar produced is exported.

Appellant questions the authority of the defendant Municipal Board to levy such an export tax,
in view of Section 2287 of the Revised Administrative Code which denies from municipal councils
the power to impose an export tax. Section 2287 in part states: "It shall not be in the power of the
municipal council to impose a tax in any form whatever, upon goods and merchandise carried into
the municipality, or out of the same, and any attempt to impose an import or export tax upon such
goods in the guise of an unreasonable charge for wharfage use of bridges or otherwise, shall be
void."

Subsequently, however, Section 2 of Republic Act 2264 effective June 19, 1959, gave
chartered cities, municipalities and municipal districts authority to levy for public purposes just and
uniform taxes, licenses or fees. Anent the inconsistency between Section 2287 of the Revised
Administrative Code and Section 2 of Republic Act 2264, this Court, in Nin Bay Mining Co. v.
Municipality of Roxas 4 held the former to have been repealed by the latter. And expressing Our
awareness of the transcendental effects that municipal export or import taxes or licenses will have
on the national economy, due to Section 2 of Republic Act 2264, We stated that there was no other
alternative until Congress acts to provide remedial measures to forestall any unfavorable results.

246
 The point remains to be determined, however, whether constitutional limits on the power of
taxation, specifically the equal protection clause and rule of uniformity of taxation, were infringed.

The Constitution in the bill of rights provides: ". . . nor shall any person be denied the equal
protection of the laws." (Sec. 1 [1], Art. III) In Felwa vs. Salas, 5 We ruled that the equal protection
clause applies only to persons or things identically situated and does not bar a reasonable
classification of the subject of legislation, and a classification is reasonable where (1) it is based on
substantial distinctions which make real differences; (2) these are germane to the purpose of the
law; (3) the classification applies not only to present conditions but also to future conditions which
are substantially identical to those of the present; (4) the classification applies only to those who
belong to the same class.

A perusal of the requisites instantly shows that the questioned ordinance does not meet them,
for it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company, Inc. and
none other. At the time of the taxing ordinance's enactment, Ormoc Sugar Company, Inc., it is true,
was the only sugar central in the city of Ormoc. Still, the classification, to be reasonable, should be in
terms applicable to future conditions as well. The taxing ordinance should not be singular and
exclusive as to exclude any subsequently established sugar central, of the same class as plaintiff,
for the coverage of the tax. As it is now, even if later a similar company is set up, it cannot be subject
to the tax because the ordinance expressly points only to Ormoc City Sugar Company, Inc. as the
entity to be levied upon.

Appellant, however, is not entitled to interest; on the refund because the taxes were not
arbitrarily collected (Collector of Internal Revenue v. Binalbagan). 6 At the time of collection, the
ordinance provided a sufficient basis to preclude arbitrariness, the same being then presumed
constitutional until declared otherwise.

WHEREFORE, the decision appealed from is hereby reversed, the challenged ordinance is
declared unconstitutional and the defendants-appellees are hereby ordered to refund the
P12,087.50 plaintiff-appellant paid under protest. No costs. So ordered.

G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation
to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

247
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the
Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages.
Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a friend in Zurich,
Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his
name, passport number, the date of shipment and the name and address of the consignee,
namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books, cigars,
and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita
Reyes no longer insisted on inspecting the packages. The four (4) packages were then
placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed
at the bottom and on top of the packages before the box was sealed with masking tape, thus
making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job
Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure,
opened the boxes for final inspection. When he opened appellant's box, a peculiar odor
emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly
containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of one of the gloves. He made an opening
on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp.
29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-
6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the
National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that
date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes
informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes
and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila
(tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the
cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have
been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis
supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof,
after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7,
1987).

248
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the agents requested assistance from the latter's
Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was
invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section
for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as
certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as
the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED

AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED

FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF

THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION
(Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be
held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

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 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. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

249
 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. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA
383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and
seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its
seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried
over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de
Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA
687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other authorized
government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation
of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity
of one's person, whether citizen or alien, from interference by government, included in which
is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is
his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon
to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616
[1886]; Emphasis supplied).

250
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as
shown in previous cases, its protection applies to governmental action. Its origin and history
clearly show that it was intended as a restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than governmental agencies; as against such
authority it was the purpose of the Fourth Amendment to secure the citizen in the right of
unmolested occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for illegal
possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the
owner of a motel in which appellant stayed overnight and in which he left behind a travel
case containing the evidence***complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local police, informed them of
the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."

The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances,
the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).

251
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to
the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and
look at that which is in plain sight is not a search. Having observed that which is open, where no
trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the arresting officer,
there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to protection. But protection
against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill of
Rights governs the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals. What the Bill
of Rights does is to declare some forbidden zones in the private sphere inaccessible to any
power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of
the proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by
the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it
matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).

252
The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not
shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against
the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with
appellant that an act of a private individual in violation of the Bill of Rights should also be construed
as an act of the State would result in serious legal complications and an absurd interpretation of the
constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the constitution while under custodial investigation
were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law enforcers
testified that accused/appellant was informed of his constitutional rights. It is presumed that they
have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full
faith and credence, there being no evidence to the contrary. What is clear from the records, on the
other hand, is that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did
you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62;
Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we have examined
the assailed judgment of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.

253
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was
not the owner of the packages which contained prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-
minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the
cost of the shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four
(4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply
with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person
would not simply entrust contraband and of considerable value at that as the marijuana flowering
tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on
the other hand, would not simply accept such undertaking to take custody of the packages and ship
the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he
readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot
be given greater evidentiary weight than the testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol,
he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a
Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244;
Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke,
37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even
bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed,
the German national was the owner of the merchandise, appellant should have so indicated in the
contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the
contract as the owner and shipper thereof giving more weight to the presumption that things which a
person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At
this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.

G.R. No. L-19550 June 19, 1967

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

254
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

255
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.

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 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 Respondents-Prosecutors 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. 1äw phï1.ñët

256
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 13provides:

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.

257
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), Respondents-Prosecutors 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. 20After 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

258
 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.

259
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,

260
LEOVIGILDO U. MANTARING, complainant, vs. JUDGE MANUEL A.
ROMAN, JR., RTC, Branch 42, Pinamalayan, Oriental Mindoro;
and JUDGE IRENEO B. MOLATO, MTC, Bongabon, Oriental
Mindoro, respondents.
SYLLABUS
1. REMEDIAL LAW; NEW TRIAL; REMEDY AVAILABLE TO PARTIES
DENIED OF A FAIR AND IMPARTIAL TRIAL. - There is a remedy
available to the party seeking the disqualification of the judge. If he is denied
a fair and impartial trial, caused by the judges bias or prejudice, he can ask
for a new trial in the interest of justice which will be granted if that is really
the case.
2. ID.; CRIMINAL PROCEDURE; SEARCH WARRANT; WARRANT OF
ARREST; BASIS FOR ISSUANCE. - The issuance of a search warrant and
of a warrant of arrest requires the showing of probabilities as to different
facts. In the case of search warrants, the determination is based on the
finding that (1) the articles to be seized are connected to a criminal activity
and (2) they are found in the place to be searched. It is not necessary that
a particular person be implicated. On the other hand, in arrest cases, the
determination of probable cause is based on a finding that a crime has been
committed and that the person to be arrested has committed it.
3. ID.; ID.; WARRANT OF ARREST; REQUIREMENTS FOR ISSUANCE. - It
is now settled that in issuing warrants of arrest in preliminary investigations,
the investigating judge must: (a) have examined in writing and under oath
the complainant and his witnesses by searching questions and answers; (b)
be satisfied that probable cause exists; and (c) that there is a need to place
the respondent under immediate custody in order not to frustrate the ends
of justice.

DECISION
MENDOZA, J.:

Respondent Judge Ireneo B. Molato is the presiding judge of the Municipal

Trial Court of Bongabon, Oriental Mindoro. On January 7, 1993, an
administrative complaint was filed against him and Judge Manuel A. Roman,
Jr., presiding judge of the Regional Trial Court of Pinamalayan, Oriental
Mindoro, Branch 42, by Leovigildo U. Mantaring, Sr., who charged them with
conduct unbecoming of members of the judiciary. On February 21, 1994, after
the parties had filed their respective pleadings and supporting documents, this

261
Court dismissed the complaint against the two for lack of merit. The motion for
reconsideration filed by complainant was subsequently denied.
What is before us now is the Supplemental Complaint filed by Leovigildo U.
Mantaring, Sr. against Judge Ireneo B. Molato, which charges him with
harassment. It is alleged that because of the filing of the first complaint against
him, respondent Judge Ireneo B. Molato should have inhibited himself from
conducting the preliminary investigation of a criminal case considering that the
respondents in that case were complainant and his son. Instead, it is alleged,
he took cognizance of the case and ordered the arrest of complainant and his
son, Leovigildo Mantaring, Jr., out of hatred and revenge for them because of
the filing of the first case by the complainant.
The Supplemental Complaint was referred to the Office of the Court
Administrator which, in a Memorandum dated 25 November 1994,
recommended the dismissal of the case for lack of merit. Nonetheless, the
Court required the respondent Judge Ireneo B. Molato to comment.
In his Comment dated July 6, 1995, respondent judge denies the allegations
against him. He avers that on the application by SPO4 Pacifico L. Fradejas, he
issued a search warrant which resulted in the seizure from a certain Joel Gamo
of a home-made gun, a hand grenade, five live ammunitions for Cal. 38 and
three live ammunitions for 12 gauge shotgun; that on August 25, 1993, a
complaint for Illegal Possession of Firearms and Ammunition was filed against
Joel Gamo in which the herein complainant Leovigildo, Sr. and his son,
Leovigildo, Jr., were included; that finding that the house in which the firearms
and ammunition had been found was owned by complainant and his son, he
concluded that there was probable cause to believe that complainant and his
son were guilty of illegal possession of firearms and ammunition and
accordingly ordered their arrest. Respondent judge claims that he inhibited
himself from the case after he was ordered by the Executive Judge, RTC,
Branch 41, Pinamalayan, Oriental Mindoro.
In his Reply complainant contends that as the search warrant was issued
only against Joel Gamo and Mantaring, Jr. it was wrong for respondent judge
to find probable cause against him on the theory that, as owners of the house
in which the firearms and ammunitions were found, they had constructive
possession of the same. He likewise contends that respondent judge did not
inhibit himself until after the preliminary examination was terminated and the
warrant of arrest issued, and only after complainant had filed a petition for
inhibition which the Executive Judge found to be well taken.
On October 16, 1995, this case was referred to the OCA for reevaluation,
report and recommendation. On January 12, 1996, the OCA submitted a

262
Memorandum, recommending dismissal of the supplemental complaint for lack
of merit, for the following reasons:

(1) It is erroneous for herein complainant to equate the application for the issuance of
search warrant with the institution and prosecution of criminal action in a trial court.
(Malaloan vs. Court of Appeals, 232 SCRA 249).Complainant cannot insist that since
his name was not included in the search warrant, the house designated to be searched
did not belong to him, and that he was not present at the preliminary investigation of
witnesses preparatory to the issuance of the questioned warrant of arrest, there was no
basis for respondent judge to order his arrest.

(2) No taint of irregularity attended the issuance by respondent judge of the warrant of
arrest against complainant and his son. Neither was the charge that the warrant of
arrest was issued by respondent judge in the spirit of anger, hatred or harassment
purposes substantiated.

To begin with, it cannot be contended that complainant Leovigildo

Mantaring, Sr. could not be proceeded against simply because he was not
included in the search warrant issued against Gamo and Leovigildo Mantaring,
Jr., who is apparently his son. The determination of probable cause in
preliminary investigations is based solely on the evidence presented by the
complainant, regardless of whether or not the respondent in that case is named
in the proceedings for a search warrant. As correctly pointed out by, the
OCA, the issuance of a search warrant and of a warrant of arrest requires the
[1]

showing of probabilities as to different facts. In the case of search warrants, the

determination is based on the finding that (1) the articles to be seized are
connected to a criminal activity and (2) they are found in the place to be
searched. It is not necessary that a particular person be implicated. On the
other hand, in arrest cases, the determination of probable cause is based on a
finding that a crime has been committed and that the person to be arrested has
committed it.
In this case, the arrest of herein complainant and his son, together with Joel
Gamo, was ordered on the basis of respondents finding that the place from
where the guns and ammunitions were seized belonged to complainant
Leovigildo Mantaring, Sr. and the testimonies of witnesses presented by SPO4
Fradejas. Of course complainant denies that the house in which the firearms
and ammunition were found belonged to him and claims that at the time of the
search he was in Manila. The provincial prosecutor subsequently dismissed the
case against complainant on precisely these grounds, i.e., that the house did
not belong to complainant and he was in Manila at the time the search and
seizure were conducted. But to say this is not to say that respondent acted

263
arbitrarily or that he abused his powers so as to give ground for administrative
disciplinary action against him. It is only to say that he committed an error of
judgment for which complainants remedy is judicial.
What we think requires serious consideration is the contention by the
complainant that respondent judge should have inhibited himself from
conducting the preliminary investigation of the criminal case, considering that
the respondent was the present complainant, who had earlier filed an
administrative case against the judge and another one.
We are not unmindful of the cases in which it was stated that the mere filing
of an administrative case against a judge by one of the parties before him is not
a ground for disqualifying him from hearing a case. An examination of these
[2]

cases reveals, however, that the administrative cases were filed during the
pendency of the cases, and it is evident that the administrative cases were filed
only to force the judge to inhibit himself from the consideration of the case
before him. As this Court held, if on every occasion the party apparently
aggrieved were allowed to stop the proceedings in order to await the final
decision on the desired disqualification, or demand the immediate inhibition of
the judge on the basis alone of his being so charged, many cases would have
to be kept pending or perhaps there would not be enough judges left to handle
all the cases pending in all the courts. On the other hand, there is a remedy
[3]

available to the party seeking the disqualification of the judge. If he is denied a

fair and impartial trial, caused by the judges bias or prejudice, he can ask for a
new trial in the interest of justice which will be granted if that is really the case.
[4]

But, in the case at bar, an administrative complaint against respondent and

Judge Manuel A. Roman, Jr. had previously been filed and it was paramount
that respondent was free from any appearance of bias against, or hostility
toward, the complainant. The impression could not be helped that his action in
that case was dictated by a spirt of revenge against complainant for the latters
having filed an administrative disciplinary action against the judge. The situation
called for sedulous regard on his part for the principle that a party is entitled to
nothing less than the cold neutrality of an impartial judge.
This circumstance should have underscored for respondent the need of
steering clear of the case because he might be perceived, rightly or wrongly, to
be susceptible to bias and partiality. For his judgment must not be tainted by
even the slightest suspicion of improbity or preconceived interest in order to
preserve at all times the faith and confidence in courts of justice by any party to
the litigation.
[5]

Indeed prudence should have made respondent judge heed the admonition
that a spotless dispensation of justice requires not only that the decision

264
rendered be intrinsically fair but that the judge rendering it must at all times
maintain the appearance of fairness and impartiality. [6]

Moreover, we think it was improper for respondent judge to have issued the
warrants of arrest against complainant and his son without any finding that it
was necessary to place them in immediate custody in order to prevent a
frustration of justice. It is now settled that in issuing warrants of arrest in
[7]

preliminary investigations, the investigating judge must:

(a) have examined in writing and under oath the complainant and his witnesses by
searching questions and answers;

(b) be satisfied that probable cause exists; and

(c) that there is a need to place the respondent under immediate custody in order not to
frustrate the ends of justice.

In this case, respondent judge justified the issuance of the warrant of arrest
on the following ground:

In view of the above considerations [referring to the antecedent facts], it is the honest
belief and finding of the Court that there is sufficient probable cause that the crime of
Illegal Possession of Firearms and Ammunition was committed and that the named
three (3) accused Joel Gamo, Leovigildo Mantaring, Sr. and Leovigildo Mantaring Jr.
are the ones probably guilty thereof for which reason Warrant of Arrest was issued by
undersigned against them.

He thus ordered the issuance of warrant of arrest solely on his finding of

probable cause, totally omitting to consider the third requirement that there must
be a need to place the respondent under immediate custody in order not to
frustrate the ends of justice.
The framers of the Constitution confined the determination of probable
cause as basis for the issuance of warrants of arrest and search warrants to
judges the better to secure the people against unreasonable searches and
seizures. Respondent judge failed to live up to this expectation by refusing to
inhibit himself even when his very impartiality was in question and worse by
issuing a warrant of arrest without determining whether or not it was justified by
the need to prevent a frustration of the ends of justice. Parenthetically, the
records show that the criminal complaints against herein complainant and his
son were eventually dismissed by the Provincial Prosecutor, but not without the
following parting words:

265
 It cannot be gainsaid that respondents Mantarings were greatly prejudiced
and suffered damages as a consequence of their inclusion in the criminal
complaint. The unfortunate incident could have been avoided had the
Honorable Municipal Trial Judge exercised the necessary prudence and judicial
perpecuity [sic] expected of an impartial Judge in the conduct of preliminary
investigation before issuance of warrant of arrest.
WHEREFORE, respondent judge Ireneo B. Molato is REPRIMANDED and
WARNED that commission of similar acts in the future will be dealt with more
severely. All other charges are dismissed for lack of merit.
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
ORDOÑEZ, 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.

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:

266
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 counter-affidavits. 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:

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

267
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.

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,

268
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.

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

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of
the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe
this is the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and
one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist,
the publisher and chairman of the editorial board, the managing editor and the business manager in
a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal
attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause
dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution
for libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned
that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the
press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals
and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of sensitive
issues and public affairs, this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete 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

269
under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear
conscience." The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the eye
of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and
has equal rights with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous
and libelous charges, would actually invite attacks by those who desire to create sensation. It would
seem that what would ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that
a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain
issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court
of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328.
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured by standards
that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American government.
They recognized the risk to which all human institutions are subject. But they knew
that order cannot be secured merely through fear of punishment for its infraction; that
it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that

270
 the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsel is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by law—the argument of force in its worst form. ...

Thus we consider this case against the background of a profound national

commitment to 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. ... (at pp.
700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear
to shame or disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the type of case
now before us dampen the vigor and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly
drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue
on prematurity is moot. The second issue discusses a procedure now embodied in the recently
amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent
the third issue, considerations of public policy dictate that an incumbent President should not be
sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if
somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I
know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But why
should we subject them to this problem? And why should we allow the possibility of the trial court
treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom
of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when
applied with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.

Separate Opinions

271
GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of
the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe
this is the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and
one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist,
the publisher and chairman of the editorial board, the managing editor and the business manager in
a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal
attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause
dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution
for libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned
that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the
press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals
and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of sensitive
issues and public affairs, this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete 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 can be assuaged with the balm of a clear
conscience." The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the eye
of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and
has equal rights with every other man." (at p. 900)

272
In fact, the Court observed that high official position, instead of affording immunity from slanderous
and libelous charges, would actually invite attacks by those who desire to create sensation. It would
seem that what would ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that
a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain
issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court
of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). <är e|| anº• 1àw>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328.
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured by standards
that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American government.
They recognized the risk to which all human institutions are subject. But they knew
that order cannot be secured merely through fear of punishment for its infraction; that
it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsel is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by law—the argument of force in its worst form. ...

Thus we consider this case against the background of a profound national

commitment to 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. ... (at pp.
700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly

273
participated in a wilful purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear
to shame or disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the type of case
now before us dampen the vigor and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly
drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue
on prematurity is moot. The second issue discusses a procedure now embodied in the recently
amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent
the third issue, considerations of public policy dictate that an incumbent President should not be
sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if
somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I
know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But why
should we subject them to this problem? And why should we allow the possibility of the trial court
treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom
of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when
applied with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.

G.R. No. 81756 October 21, 1991

NICOMEDES SILVA @ " Comedes", MARLON SILVA, @ "Tama" and ANTONIETA

SILVA, petitioners,
vs.
THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS ORIENTAL,
BRANCH XXXIII, DUMAGUETE CITY, respondent.

Marcelo G. Flores for petitioners.

274
FERNAN, C.J.:

In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1
issued by respondent Judge as well as the return of the money in the amount of P1,231.00 seized
from petitioner Antonieta Silva.

The antecedent facts are as follows:

On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in
Dumaguete City, Negros Oriental, filed an "Application for Search Warrant" with the Regional Trial
Court, Branch XXXIII, Dumaguete City against petitioners Nicomedes Silva and Marlon Silva. 1 This
application was accompanied by a "Deposition of Witness" executed by Pfc. Arthur M. Alcoran and
Pat. Leon T. Quindo, also dated June 13, 1986. 2

On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court, Branch XXXIII, Dumaguete City, pursuant to the said
"Application for Search Warrant" and "Deposition of Witness", issued Search Warrant No. 1, directing the aforesaid police officers to search the room of
Marlon Silva in the residence of Nicomedes Silva for violation of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972. as
amended. Pertinent portions of Search Warrant No. 1 read as follows:

It appearing to the satisfaction of the undersigned after examining oath (sic) MSGT. Ranulfo T. Villamor, Jr.and his witnesses (sic) Pfc.
Arthur M. Alcoran and Pat. Leon T. Quindo that there is probable cause to believe that possession and control of Marijuana dried leaves,
cigarettes, joint has been committed or is about to be committed and that there are good and sufficient reasons to believe that marijuana
dried leaves, cigarettes, joint has in possession and/or control at Tama's Room (Rgt. side lst Floor) located at Nono-Limbaga Drive, Tanjay,
Neg. Or. which is/are:

X (Subject of the offense stated above

(Stolen or embezzled or other proceeds of fruits of the offense;

X (Used or intended to be used as means of committing an offense.

You are hereby commanded to make an immediate search at any time of the day (night) of the room of Tama Silva residence of his father Comedes Silva to open (sic)aparadors, lockers, cabinets, cartoons, containers,
forthwith seize and take possession of the following property Marijuana dried leaves, cigarettes, joint and bring the said property to the undersigned to be dealt with as the law directs. 3

In the course of the search, the serving officers also seized money belonging to Antonieta Silva in the amount of P1,231.40.

On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the grounds that the search warrant only authorized the serving officers to seize marijuana dried leaves, cigarettes and joint, and that said officers
failed or refused to make a return of the said search warrant in gross violation of Section 11, Rule 126 of the Rules of Court. 4

Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court "holds in abeyance the disposition of the said amount of P1,231.40 pending the filing of appropriate charges in connection with the search
warrant." 5

275
On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that (1) it was issued on the sole basis of a mimeographed "Application for Search Warrant" and "Deposition of Witness", which were
accomplished by merely filling in the blanks and (2) the judge failed to personally examine the complainant and witnesses by searching questions and answers in violation of Section 3, Rule 126 of the Rules of Court. 6

On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had replaced retired Judge Ontal, issued an Order denying the motion for lack of merit, finding the requisites necessary for the issuance of a
valid search warrant duly complied with. 7

A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by Judge Cruz in an order dated October 19, 1987.

Hence, this special civil action for certiorari.

Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that respondent Judge should be viewed to have acted
without or in excess of jurisdiction, or committed grave abuse of discretion amounting to lack of jurisdiction when he issued the Order dated August 11,
1987, denying their motion to quash Search Warrant No, 1.

We rule for petitioners.

Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal liberty and security of homes against unreasonable
searches and seizures. This section provides:

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 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.

The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under
legislative or judicial sanction, and to give remedy against such usurpations when attempted. 8

Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance of a search warrant, to wit:

SEC. 3. Requisite for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific
offense 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 things to be seized.

SEC. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them
and attach to the record their sworn statements together with any affidavits submitted.

Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a search warrant, determine whether there is probable
cause by examining the complainant and witnesses through searching questions and answers.

In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this Court defined "probable cause" as follows:

The "probable cause" for a valid search warrant, has been 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 objects sought in connection with the offense are in the
place sought to be searched". This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses
he may produce and not based on mere hearsay.

276
In the case at bar, we have carefully examined the questioned search warrant as well as the "Application for Search Warrant" and "Deposition of
Witness", and found that Judge Ontal failed to comply with the legal requirement that he must examine the applicant and his witnesses in the form of
searching questions and answers in order to determine the existence of probable cause. The joint "Deposition of Witness" executed by Pfc. Alcoran
and Pat. Quindo, which was submitted together with the "Application for Search Warrant" contained, for the most part suggestive questions answerable
by merely placing "yes" or "no" in the blanks provided thereon. In fact there were only four (4) questions asked, to wit:

Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the applicant for a search warrant?

A Yes, sir.

Q Do you have personal knowledge that the said premises subject of the offense stated above, and other proceeds of fruit of the offense,
used or obtain (sic) or intended to be used as means of committing an offense?

A Yes, sir.

Q Do you know personally who is/are the person who has/have the property in his/their possession and control?

A Yes, sir.

Q How did you know all this (sic) things?

A Through discreet surveillance. 9

The above deposition did not only contain leading questions but it was also very broad. The questions propounded to the witnesses were in fact, not
probing but were merely routinary. The deposition was already mimeogragphed and all that the witnesses had to do was fill in their answers on the
blanks provided.

In the case of Nolasco vs. Paño, G.R. No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court held:

The "probable cause" required to justify the issuance of a search warrant comprehends such facts and circumstances as will induce a
cautious man to rely upon them and act in pursuant thereof. Of the 8 questions asked, the 1st, 2nd and 4th pertain to identity. The 3rd and
5th are leading not searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is identical to
that in the Search Warrant and suffers from the same lack of particularity. The examination conducted was general in nature and merely
repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the requirements or probable cause
upon which a warrant may issue.

Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as invalid due to the failure of the judge to examine the
witness in the form of searching questions and answers. Pertinent portion of the decision reads:

Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was too brief and short. Respondent Judge did not examine him "in the form of searching questions and answers". On the contrary, the
questions asked were leading as they called for a simple "yes" or "no" answer. As held in Quintero vs. NBI, "the questions propounded by respondent Executive Judge to the applicant's witness' are not sufficiently
searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for
issuance of a valid search warrant. 10

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Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and statutory requirement that he must determine the existence
of probable cause by personally examining the applicant and his witnesses in the form of searching questions and answers. His failure to comply with
this requirement constitutes grave abuse of discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, "the
capricious disregard by the judge in not complying with the requirements before issuance of search warrants constitutes abuse of discretion".

The officers implementing the search warrant clearly abused their authority when they seized the money of Antonieta Silva. This is highly irregular
considering that Antonieta Silva was not even named as one of the respondents, that the warrant did not indicate the seizure of money but only of
marijuana leaves, cigarettes and joints, and that the search warrant was issued for the seizure of personal property (a) subject of the offense and (b)
used or intended to be used as means of committing an offense and NOT for personal property stolen or embezzled or other proceeds of fruits of the
offense. Thus, the then presiding Judge Ontal likewise abused his discretion when he rejected the motion of petitioner Antonieta Silva seeking the
return of her seized money.

WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void. Respondent Judge of the Regional Trial Court of Negros
Oriental, Branch XXXIII is directed to order the return to petitioner Antonieta Silva of the amount of P1,231.40 which had earlier been seized from her
by virtue of the illegal search warrant. This decision is immediately executory. No costs.

G.R. No. L-22196 June 30, 1967

ESTEBAN MORANO, CHAN SAU WAH and FU YAN FUN, petitioners-appellants,

vs.
HON. MARTINIANO VIVO in his capacity as Acting Commissioner of Immigration, respondent-
appellant.

Engracio Fabre Law Office for petitioners-appellants.

Office of the Solicitor General Arturo A. Alafriz and Solicitor A. M. Amores for respondent-appellant.

SANCHEZ, J.:

Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6, 1932, arrived in the
Philippines on November 23, 1961 to visit her cousin, Samuel Lee Malaps. She left in mainland
China two of her children by a first marriage: Fu Tse Haw and Fu Yan Kai With her was Fu Yan Fun,
her minor son also by the first marriage, born in Hongkong on September 11, 1957.

Chan Sau Wah and her minor son Fu Yan Fun were permitted only into the Philippines under a
temporary visitor's visa for two (2) months and after they posted a cash bond of P4,000.00.

On January 24, 1962, Chan Sau Wah married Esteban Morano, a native-born Filipino citizen. Born
to this union on September 16, 1962 was Esteban Morano, Jr.

To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun obtained several
extensions. The last extension expired on September 10, 1962. 1äwphï1.ñët

In a letter dated August 31, 1962, the Commissioner of Immigration ordered Chan Sau Wah and her
son, Fu Yan Fun, to leave the country on or before September 10, 1962 with a warning that upon
failure so to do, he will issue a warrant for their arrest and will cause the confiscation of their bond.

Instead of leaving the country, on September 10, 1962, Chan Sau Wah (with her husband Esteban
Morano) and Fu Yan Fun petitioned the Court of First Instance of Manila for mandamus to compel
the Commissioner of Immigration to cancel petitioners' Alien Certificates of Registration; prohibition

278
to stop the Commissioner from issuing a warrant for their arrest, and preliminary injunction to
restrain the Commissioner from confiscating their cash bond and from issuing warrants of arrest
pending resolution of this case.1 The trial court, on November 3, 1962, issued the writ of preliminary
injunction prayed for, upon a P2,000-bond. After trial and the stipulations of facts filed by the parties,
the Court of First Instance rendered judgment, viz:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as follows:

(a) Granting this petition for Mandamus and Prohibition with respect to petitioner CHAN SAU
WAH, who is hereby declared a citizen of the Philippines; ordering the respondent to cancel
her Alien Certificate of Registration and other immigration papers, upon the payment of
proper dues; and declaring the preliminary injunction with respect to her permanent,
prohibiting the respondent, his representatives or subordinates from arresting and/or
deporting said petitioner;

(b) Dismissing this petition with respect to petitioner FU YAN FUN, and dissolving the writ of
preliminary injunction issued herein, restraining the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;

(c) Authorizing respondent Commissioner to forfeit the bond filed by herein petitioners CHAN
SAU WAH and FU YAN FUN in the amount of P4,000.00; and

(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of the Philippine Immigration
Act of 1940 unconstitutional;

Without pronouncement, as to costs.

Petitioners and respondent Commissioner both appealed.

We will deal with the claims of both appellants in their proper sequence.

1. The Solicitor General's brief assails the trial court's declaration that Chan Sau Wah is a citizen of
the Philippines. The court a quo took the position that "Chan Sau Wah became, by virtue of, and
upon, her marriage to Esteban Morano, a natural-born Filipino, a Filipino citizen.2

Placed to the fore is paragraph 1, Section 15 of Commonwealth Act 473 [Revised Naturalization
Act], which reads:

Sec. 15. Effect of the naturalization on wife children. — Any woman who is now or may
hereafter be married to a citizen of the Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines.

To apply this provision, two requisites must concur: (a) valid marriage of an alien woman to a citizen
of the Philippines and (b) the alien woman herself might be lawfully naturalized.

We may concede that the first requisite has been properly met. The validity of the marriage is
presumed.

But can the same be said of the second requisite? This question by all means is not new. In a series
of cases, this Court has declared that the marriage of an alien woman to a Filipino citizen does
not ipso facto make her a Filipino citizen. She must satisfactorily show that she has all the

279
qualifications and none of the disqualifications required by the Naturalization Law.3 Ly Giok Ha alias
Wy Giok Ha et al. vs. Emilio Galang, L-21332, March 18, 1966,* clearly writes down the philosophy
behind the rule in the following expressive language, viz:

Reflection will reveal why this must be so. The qualifications prescribed under section 2 of
the Naturalization Act, and the disqualifications enumerated in its section 4, are not mutually
exclusive; and if all that were to be required is that the wife of a Filipino be not disqualified
under section 4, the result might well be that citizenship would be conferred upon persons in
violation of the policy of the statute. For example, section 4 disqualifies only —

"(c) Polygamists or believers in the practice of polygamy; and

(b) Persons convicted of crimes involving moral turpitude,"

so that a blackmailer, or a maintainer of gambling or bawdy houses, not previously convicted

by a competent court, would not be thereby disqualified; still it is certain that the law did not
intend such a person to, be admitted as a citizen in view of the requirement of section 2 that
an applicant for citizenship "must be of good moral character."

Similarly, the citizen's wife might be a convinced believer in racial supremacy, in government
by certain selected classes, in the right to vote exclusively by certain "herrenvolk," and thus
disbelieve in the principles underlying the Philippine Constitution; yet she would not be
disqualified under section 4, as long as she is not "opposed to organized government," nor
affiliated to groups "upholding or teaching doctrines opposing all organized governments,"
nor "defending or teaching the necessity or propriety of violence, personal assault or
assassination for the success or predominance of their ideas." Et sic de caeteris.

Upon the principle of selective citizenship, we cannot afford to depart from the wise precept affirmed
and reaffirmed in the cases heretofore noted.

In the additional stipulation of facts of July 3, 1963, petitioners admit that Chan Sau Wah is not
possessed of all the qualifications required by the Naturalization Law.

Because of all these we are left under no doubt that petitioner Chan Sau Wah did not become a
Filipino citizen.

2. Squarely put in issue by petitioners is the constitutionality of Section 37 (a) of the Immigration Act
of 1940, which reads:

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration or of any other officer designated by him for the purpose and deported upon the
warrant of the Commissioner of Immigration after a determination by the Board of
Commissioners of the existence of the ground for deportation as charged against the alien:

xxx xxx xxx

(7) Any alien who remains in the Philippines in violation of any limitation or condition under
which he was admitted as a nonimmigrant.

Petitioners argue that the legal precept just quoted trenches upon the constitutional mandate in
Section 1 (3), Article III [Bill of Rights] of the Constitution, to wit:

280
 (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.

They say that the Constitution limits to judges the authority to issue warrants of arrest and that the
legislative delegation of such power to the Commissioner of Immigration is thus violative of the Bill of
Rights.

Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in the
execution of a final order of deportation issued in accordance with law. The constitutional limitation
contemplates an order of arrest in the exercise of judicial power4 as a step preliminary or incidental
to prosecution or proceedings for a given offense or administrative action, not as a measure
indispensable to carry out a valid decision by a competent official, such as a legal order of
deportation, issued by the Commissioner of Immigration, in pursuance of a valid legislation.

The following from American Jurisprudence,5 is illuminating:

It is thoroughly established that Congress has power to order the deportation of aliens whose
presence in the country it deems hurtful. Owing to the nature of the proceeding, the
deportation of an alien who is found in this country in violation of law is not a deprivation of
liberty without due process of law. This is so, although the inquiry devolves upon executive
officers, and their findings of fact, after a fair though summary hearing, are made conclusive.

xxx xxx xxx

The determination of the propriety of deportation is not a prosecution for, or a conviction of,
crime; nor is the deportation a punishment, even though the facts underlying the decision
may constitute a crime under local law. The proceeding is in effect simply a refusal by the
government to harbor persons whom it does not want. The coincidence of local penal law
with the policy of Congress is purely accidental, and, though supported by the same facts, a
criminal prosecution and a proceeding for deportation are separate and independent.

In consequence, the constitutional guarantee set forth in Section 1 (3), Article III of the Constitution
aforesaid, requiring that the issue of probable cause be determined by a judge, does not extend to
deportation proceedings.6

The view we here express finds support in the discussions during the constitutional convention. The
convention recognized, as sanctioned by due process, possibilities and cases of deprivation of
liberty, other than by order of a competent court.7

Indeed, the power to deport or expel aliens is an attribute of sovereignty. Such power is planted on
the "accepted maxim of international law, that every sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its
dominions."8 So it is, that this Court once aptly remarked that there can be no controversy on the fact
that where aliens are admitted as temporary visitors, "the law is to the effect that temporary visitors
who do not depart upon the expiration of the period of stay granted them are subject to deportation
by the Commissioner of Immigration, for having violated the limitation or condition under which they
were admitted as non-immigrants (Immigration Law, Sec. 37 (a), subsection (7); C.A. 613, as
amended)."9

281
And, in a case directly in point, where the power of the Commissioner to issue warrants of arrest was
challenged as unconstitutional, because "such power is only vested in a judge by Section 1,
paragraph 3, Article III of our Constitution," this Court declared —

This argument overlooks the fact that the stay of appellant Ng Hua To as temporary visitor is
subject to certain contractual stipulations as contained in the cash bond put up by him,
among them, that in case of breach the Commissioner may require the recommitment of the
person in whose favor the bond has been filed. The Commissioner did nothing but to enforce
such condition. Such a step is necessary to enable the Commissioner to prepare the ground
for his deportation under section 37 (a) of Commonwealth Act 613. A contrary interpretation
would render such power nugatory to the detriment of the State.10

It is in this context that we rule that Section 37 (a) of the Immigration Act of 1940 is not
constitutionally proscribed.

3. A sequel to the questions just discussed is the second error set forth in the government's brief.
The Solicitor General balks at the lower court's ruling that petitioner Chan Sau Wah is entitled to
permanent residence in the Philippines without first complying with the requirements of Sections 9
and 13 of the Immigration Act of 1940, as amended by Republic Act 503.

We first go to the law, viz:

SEC. 9 [last paragraph]

An alien who is admitted as a nonimmigrant cannot remain in the Philippines permanently.

To obtain permanent admission, a nonimmigrant alien must depart voluntarily to some
foreign country and procure from the appropriate Philippine consul the proper visa and
thereafter undergo examination by the officers of the Bureau of Immigration at a Philippine
port of entry for determination of his admissibility in accordance with the requirements of this
Act.

SEC. 13. Under the conditions set forth in this Act there may be admitted into the Philippines
immigrants, termed "quota immigrants" not in excess of fifty (50) of any one nationality or
without nationality for any one calendar year, except that the following immigrants, termed
"nonquota immigrants," maybe admitted without regard to such numerical limitations.

The corresponding Philippine Consular representative abroad shall investigate and certify
the eligibility of a quota immigrant previous to his admission into the Philippines. Qualified
and desirable aliens who are in the Philippines under temporary stay may be admitted within
the quota, subject to the provisions of the last paragraph of section 9 of this Act.

(a) The wife or the husband or the unmarried child under twenty-one years of age of a
Philippine citizen, if accompanying or following to join such citizen;

(b) A child of alien parents born during the temporary visit abroad of the mother, the mother
having been previously lawfully admitted into the Philippine for permanent residence, if the
child is accompanying or coming to join a parent and applies for admission within five years
from the date of its birth;

Concededly, Chan Sau Wah entered the Philippines on a tourist-temporary visitor's visa. She is a
non-immigrant. Under Section 13 just quoted, she may therefore be admitted if she were a qualified

282
and desirable alien and subject to the provisions of the last paragraph of Section 9. Therefore, first,
she must depart voluntarily to some foreign country; second, she must procure from the appropriate
consul the proper visa; and third, she must thereafter undergo examination by the officials of the
Bureau of Immigration at the port of entry for determination of her admissibility in accordance with
the requirements of the immigration Act.

This Court in a number of cases has ruled, and consistently too, that an alien admitted as a
temporary visitor cannot change his or her status without first departing from the country and
complying with the requirements of Section 9 of the Immigration Act. 11

The gravamen of petitioners' argument is that Chan Sau Wah has, since her entry, married in Manila
a native-born Filipino, Esteban Morano. It will not particularly help analysis for petitioners to appeal
to family solidarity in an effort to thwart her deportation. Chan Sau Wah, seemingly is not one who
has a high regard for such solidarity. Proof: She left two of her children by the first marriage, both
minors, in the care of neighbors in Fukien, China.

Then, the wording of the statute heretofore adverted to is a forbidding obstacle which will prevent
this Court from writing into the law an additional provision that marriage of a temporary alien visitor
to a Filipino would ipso facto make her a permanent resident in his country. This is a field closed to
judicial action. No breadth of discretion is allowed us. We cannot insulate her from the State's power
of deportation.

Really, it would be an easy matter for an alien woman to enter the Philippines as a temporary visitor,
go through a mock marriage, but actually live with another man as husband and wife, and thereby
skirt the provisions of our immigration law. Also, a woman of undesirable character may enter this
country, ply a pernicious trade, marry a Filipino, and again throw overboard Sections 9 and 13 of the
Act. Such a flanking movement, we are confident, is impermissible.

Recently we confirmed the rule that an alien wife of a Filipino may not stay permanently without first
departing from the Philippines. Reason: Discourage entry under false pretenses. 12

The ruling of the trial court on this score should be reversed.

4. It is petitioners' turn to point as error the dismissal of the petition for mandamus and prohibition
with respect to petitioner Fu Yan Fun.

Petitioners' line of thought is this: Fu Yan Fun follows the citizenship of his mother. They cite Section
15, paragraph 3, Commonwealth Act 473, which says that:

A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the
parent, shall automatically become a Philippine citizen. . . .

Petitioners' position is based on the assumption that Chan Sau Wah, the mother, is a Filipino citizen.
We have held that she is not. At best, Fu Yan Fun is a step-son of Esteban Morano, husband of
Chan Sau Wah. A step-son is not a foreign-born child of the step-father. The word child, we are
certain, means legitimate child, not a step-child. We are not wanting in precedents. Thus, when the
Constitution provides that "[t]hose whose fathers are citizens of the Philippines" are citizens
thereof, 13 the fundamental charter intends "those" to apply to legitimate children. 14 In another case,
the term "minor children" or "minor child" in Section 15 of the Revised Naturalization Law refers only
to legitimate children of Filipino citizens. This Court, thru Mr. Chief Justice Roberto Concepcion,
there said: 15

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 It is claimed that the phrases "minor children" and "minor child," used in these provisions,
include adopted children. The argument is predicated upon the theory that an adopted child
is, for all intents and purposes, a legitimate child. Whenever, the word "children" or "child" is
used in statutes, it is generally understood, however, to refer to legitimate children, unless
the context of the law and its spirit indicate clearly the contrary. Thus, for instance, when the
Constitution provides that "those whose fathers are citizens of the Philippines," and "those
whose mothers are citizens of the Philippines" who shall elect Philippine citizenship upon
reaching the age of majority, are citizens of the Philippines (Article IV, Section 1,
subdivisions [3] and [4]), our fundamental law clearly refers to legitimate children
(Chiongbian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223, May 12,
1952).

At any rate, Fu Yan Fun entered the Philippines as a temporary visitor. The status of a temporary
visitor cannot be converted into, that of a permanent resident, as we have heretofore held, without
first complying with Section 9 of the Immigration Law.

5. Petitioners finally aver that the lower court erred in authorizing respondent Commissioner to forfeit
the bond filed by petitioners Chan Sau Wah and Fu Yan Fun in the amount of P4,000.00.

Here is petitioners' posture. They enjoyed their stay in the Philippines upon a bond. Now they come
to court and say that as the prescribed form of this bond was not expressly approved by the
Secretary of Justice in accordance with Section 3 of Commonwealth Act 613, which reads —

SEC. 3. . . . He [Commissioner of Immigration] shall issue, subject to the approval of the

Department Head, such rules and regulations and prescribes such forms of bond, reports,
and other papers, and shall issue from time to time such instruction, not inconsistent with
law, as he shall deem best calculated to carry out the provisions of the immigration laws. . . .

that bond is void.

Reasons there are which prevent us from giving our imprimatur to this argument.

The provision requiring official approval of a bond is merely directory. "Irregularity or entire failure in
this respect does not affect the validity of the bond. 16 The reason for the rule, is found in 9 C.J., p.
26 (footnote), which reads:

(a) Reason for rule. — "Statutes requiring bonds to be approved by certain officials are not for the
purpose of protecting the obligors in the bond, but are aimed to protect the public, to insure their
solvency, and to create evidence of an unimpeachable character of the fact of their execution. When
they are executed for a legal purpose, before a proper tribunal, and are in fact accepted and
approved by the officer or body, whose duty it was to approve them, it could serve no useful purpose
of the law to hold them invalid, to release all the obligors thereon, and to defeat every purpose of its
execution, simply because the fact of approval was not indorsed precisely as had been directed by
the Legislature." American Book Co. vs. Wells, 83 SW 622, 627, 26 Ky L-1159. (emphasis supplied)

And another. This bond was accepted by the government. It had been there. The form of the bond
here used is of long continued usage. If the government did not question the form of the bond at all,
then we must assume that it counted with the Secretary's approval. For the presumption is that
official duty has been legally performed.

Surely enough, equitable considerations will stop petitioners from pleading invalidity of the bond.
They offered that bond to enable them to enter and stay in this country. They enjoyed benefits

284
therefrom. They cannot, "in law, and good conscience, be allowed to reap the fruits" of that bond,
and then jettison the same. They are "precluded from attacking the validity" of such bond. 17

Actually, to petitioners the bond was good while they sought entry into the Philippines; they offered it
as security for the undertaking; that they "will actually depart from the Philippines" when their term of
stay expires. Now that the bond is being confiscated because they overstayed, they make an about-
face and say that such bond is null and void. They shall not profit from this inconsistent position.
Their bond should be confiscated.

Conformably to the foregoing, the judgment under review is hereby modified as follows:

(1) The portion thereof which reads:

(a) Granting their petition for Mandamus and Prohibition with respect to petitioner CHAN
SAU WAH, who is hereby declared a citizen of the Philippines; ordering the respondent to
cancel her Alien Certificate of Registration and other immigration papers, upon the payment
of proper dues; and declaring preliminary injunction with respect to her permanent,
prohibiting the respondent, his representatives or subordinates from arresting and/or
deporting said petitioner;

is hereby reversed: and, in consequence —

The petition for mandamus and prohibition with respect to petitioner Chan Sau Wah is hereby
denied; and the judgment declaring her a citizen of the Philippines, directing respondent to cancel
her Alien Certificate of Registration and other immigration papers, and declaring the preliminary
injunction with respect to her permanent, are all hereby set aside; and

(2) In all other respects, the decision appealed from is hereby affirmed.

No costs. So ordered.

G.R. No. 82544 June 28, 1988

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN
SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION AND DEPORTATION, respondent.

MELENCIO-HERRERA, J.:

A petition for Habeas Corpus.

Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen
also residing at Pagsanjan, Laguna.

The case stems from the apprehension of petitioners on 27 February 1988 from their respective
residences by agents of the Commission on Immigration and Deportation (CID) by virtue of Mission

285
Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners are
presently detained at the CID Detention Center.

Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended
after three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after
apprehension, or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted
for self-deportation and have left the country. One was released for lack of evidence; another was
charged not for being a pedophile but for working without a valid working visa. Thus, of the original
twenty two (22), only the three petitioners have chosen to face deportation.

Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected
child prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There
were also posters and other literature advertising the child prostitutes.

The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:

xxx xxx xxx

ANDREW MARK HARVEY was found together with two young boys.

RICHARD SHERMAN was found with two naked boys inside his room.

In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:

Noted:

There were two (2) children ages 14 & 16 which subject readily
accepted having been in his care and live-in for quite sometime.

On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable
aliens under Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The
"Charge Sheet" read inter alia:

Wherefore, this Office charges the respondents for deportation, as undesirable

aliens, in that: they, being pedophiles, are inimical to public morals, public health and
public safety as provided in Section 69 of the Revised Administrative Code.

On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code
On the same date, the Board of Special Inquiry III commenced trial against petitioners.

On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their
health was being seriously affected by their continuous detention. Upon recommendation of the
Board of Commissioners for their provisional release, respondent ordered the CID doctor to examine
petitioners, who certified that petitioners were healthy.

On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied
considering the certification by the CID physician that petitioners were healthy. To avoid congestion,
respondent ordered petitioners' transfer to the CID detention cell at Fort Bonifacio, but the transfer
was deferred pending trial due to the difficulty of transporting them to and from the CID where trial
was on-going.

286
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally
agreed to a self-deportation" and praying that he be "provisionally released for at least 15 days and
placed under the custody of Atty. Asinas before he voluntarily departs the country." On 7 April 1988,
the Board of Special Inquiry — III allowed provisional release of five (5) days only under certain
conditions. However, it appears that on the same date that the aforesaid Manifestation/ Motion was
filed, Harvey and his co-petitioners had already filed the present petition.

On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus.
A Return of the Writ was filed by the Solicitor General and the Court heard the case on oral
argument on 20 April 1988. A Traverse to the Writ was presented by petitioners to which a Reply
was filed by the Solicitor General.

Petitioners question the validity of their detention on the following grounds:

1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the
Revised Administrative Code, which legally clothes the Commissioner with any authority to arrest
and detain petitioners pending determination of the existence of a probable cause leading to an
administrative investigation.

2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable
searches and seizures since the CID agents were not clothed with valid Warrants of arrest, search
and seizure as required by the said provision.

3) Mere confidential information made to the CID agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with their association with other suspected pedophiles,
are not valid legal grounds for their arrest and detention unless they are caught in the act. They
further allege that being a pedophile is not punishable by any Philippine Law nor is it a crime to be a
pedophile.

We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor
General.

There can be no question that the right against unreasonable searches and seizures guaranteed by
Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens, whether
accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the constitutional
requirements of a valid search warrant or warrant of arrest is that it must be based upon probable
cause. Probable cause has been defined as referring to "such facts and circumstances antecedent
to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on
them and act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil.
33 [1937]).

The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by
a peace officer or even a private person (1) when such person has committed, actually committing,
or is attempting to commit an offense in his presence; and (2) when an offense has, in fact, been
committed and he has personal knowledge of facts indicating that the person to be arrested has
committed it (Rule 113, Section 5).

In this case, the arrest of petitioners was based on probable cause determined after close
surveillance for three (3) months during which period their activities were monitored. The existence
of probable cause justified the arrest and the seizure of the photo negatives, photographs and
posters without warrant (See Papa vs. Mago, L-27360, February 28, 1968,22 SCRA 857; People vs.
Court of First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ,

287
Constitutional Law, 1987 ed., p. 143). Those articles were seized as an incident to a lawful arrest
and, are therefore, admissible in evidence (Section 12, Rule 126,1985 Rules on criminal Procedure).

But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records
show that formal deportation charges have been filed against them, as undesirable aliens, on 4
March 1988. Warrants of arrest were issued against them on 7 March 1988 "for violation of Section
37, 45 and 46 of the Immigration Act and Section 69 of the Administrative Code." A hearing is
presently being conducted by a Board of Special Inquiry. The restraint against their persons,
therefore, has become legal. The Writ has served its purpose. The process of the law is being
followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were a person's detention
was later made by virtue of a judicial order in relation to criminal cases subsequently filed against the
detainee, his petition for hebeas corpus becomes moot and academic" (Beltran vs. Garcia, L-49014,
April 30, 1979, 89 SCRA 717). "It is a fumdamental rule that a writ of habeas corpus will not be
granted when the confinement is or has become legal, although such confinement was illegal at the
beginning" (Matsura vs. Director of Prisons, 77 Phil. 1050 [1947]).

That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were found
with young boys in their respective rooms, the ones with John Sherman being naked. Under those
circumstances the CID agents had reasonable grounds to believe that petitioners had committed
"pedophilia" defined as "psychosexual perversion involving children" (Kraft-Ebbing Psychopatia
Sexualis p. 555; Paraphilia (or unusual sexual activity) in which children are the preferred sexual
object" (Webster's Third New International Dictionary, 1971 ed., p. 1665) [Solicitor General's Return
of the Writ, on p. 101. While not a crime under the Revised Penal Code, it is behavior offensive to
public morals and violative of the declared policy of the State to promote and protect the physical,
moral, spiritual, and social well-being of our youth (Article II, Section 13, 1987 Constitution).

At any rate, the filing by petitioners of a petition to be released on bail should be considered as a
waiver of any irregularity attending their arrest and estops them from questioning its validity (Callanta
v. Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770,
January 31, 1983, 120 SCRA 525).

The deportation charges instituted by respondent Commissioner are in accordance with Section
37(a) of the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised
Administrative Code. Section 37(a) provides in part:

(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration and Deportation
after a determination by the Board of Commissioners of the existence of the ground
for deportation as charged against the alien;

xxx xxx xxx

The foregoing provision should be construed in its entirety in view of the summary and indivisible
nature of a deportation proceeding, otherwise, the very purpose of deportation proceeding would be
defeated.

Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA
562). The specific constraints in both the 1935 1 and 1987 2 Constitutions, which are substantially
Identical, contemplate prosecutions essentially criminal in nature. Deportation proceedings, on the
other hand, are administrative in character. An order of deportation is never construed as a

288
punishment. It is preventive, not a penal process. It need not be conducted strictly in accordance
with ordinary Court proceedings.

It is of course well-settled that deportation proceedings do not constitute a criminal

action. The order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32),
it being merely the return to his country of an alien who has broken the conditions
upon which he could continue to reside within our borders (U.S. vs. De los Santos,
33 Phil., 397). The deportation proceedings are administrative in character, (Kessler
vs. Stracker 307 U.S., 22) summary in nature, and need not be conducted strictly in
accordance with the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d], 155).
It is essential, however, that the warrant of arrest shall give the alien sufficient
information about the charges against him, relating the facts relied upon. (U.S. vs.
Uhl 211 F., 628.) It is also essential that he be given a fair hearing with the
assistance of counsel, if he so desires, before unprejudiced investigators (Strench
vs. Pedaris, 55 F. [2d], 597; Ex parte Jew You On, 16 F. [2d], 153). However, all the
strict rules of evidence governing judicial controversies do not need to be observed;
only such as are fumdamental and essential like the right of cross-examination. (U.S.
vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark, 53 F. [2d], 155.) Hearsay evidence
may even be admitted, provided the alien is given the opportunity to explain or rebut
it (Morrell vs. Baker, 270 F., 577; Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang
Bun vs. Fabre 81 Phil. 682 [1948]).

The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of
warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation and
before a final order of deportation is issued, conflicts with paragraph 3, Section I of Article III of the
Constitution" (referring to the 1935 Constitution) 3 is not invocable herein. Respondent
Commissioner's Warrant of Arrest issued on 7 March 1988 did not order petitioners to appear and
show cause why they should not be deported. They were issued specifically "for violation of Sections
37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code." Before
that, deportation proceedings had been commenced against them as undesirable aliens on 4 March
1988 and the arrest was a step preliminary to their possible deportation.

Section 37 of the Immigration Law, which empowers the Commissioner of

Immigration to issue warrants for the arrest of overstaying aliens is constitutional.
The arrest is a stop preliminary to the deportation of the aliens who had violated the
condition of their stay in this country. (Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562).

To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment
of the State.

The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien
temporary visitor preparatory to his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.

xxx xxx xxx

... Such a step is necessary to enable the Commissioner to prepare the ground for
his deportation under Section 37[al of Commonwealth Act 613. A contrary
interpretation would render such power nugatory to the detriment of the State. (Ng
Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).

289
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation
proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be
no "truncated" recourse to both judicial and administrative warrants in a single deportation
proceedings.

The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No.
10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under
the express terms of our Constitution (the 1935 Constitution), it is therefore even doubtful whether
the arrest of an individual may be ordered by any authority other than a judge if the purpose is
merely to determine the existence of a probable cause, leading to an administrative investigation."
For, as heretofore stated, probable cause had already been shown to exist before the warrants of
arrest were issued.

What is essential is that there should be a specific charge against the alien intended to be arrested
and deported, that a fair hearing be conducted (Section 37[c]) with the assistance of counsel, if
desired, and that the charge be substantiated by competent evidence. Thus, Section 69 of the
Revised Administrative Code explicitly provides:

Sec. 69. Deportation of subject of foreign power. A subject of a foreign power

residing in the Philippines shall not be deported, expelled, or excluded from said
Islands or repatriated to his own country by the President of the Philippines except
upon prior investigation, conducted by said Executive or his authorized agent, of the
ground upon which such action is contemplated. In such a case the person
concerned shall be informed of the charge or charges against him and he shall be
allowed not less than 3 days for the preparation of his defense. He shall also have
the right to be heard by himself or counsel, to produce witnesses in his own behalf,
and to cross-examine the opposing witnesses.

The denial by respondent Commissioner of petitioners' release on bail, also challenged by them,
was in order because in deportation proceedings, the right to bail is not a matter of right but a matter
of discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of
the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation
proceeding may be released under bond or under such other conditions as may be imposed by the
Commissioner of Immigration." The use of the word "may" in said provision indicates that the grant
of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the
power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February
28,1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised Administrative Code
guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs.
Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of
a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said
proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra).

Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds
as it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre 81 Phil. 682
[1948]). The power to deport aliens is an act of State, an act done by or under the authority of the
sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against
undesirable aliens whose continued presence in the country is found to be injurious to the public
good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]).
Particularly so in this case where the State has expressly committed itself to defend the tight of
children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their development (Article XV, Section 3[2]). Respondent

290
Commissioner of Immigration and Deportation, in instituting deportation proceedings against
petitioners, acted in the interests of the State.

WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and
seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.

The facts are as follows:

xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City,
in a sworn statement filed with the Philippine Overseas Employment Administration
(POEA for brevity) charged petitioner Hortencia Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito at

nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay

ayaw ibigay sa akin ng dati kong manager. — Horty
Salazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang

panloloko sa
iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako.

Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.

291
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said
complaint was assigned, sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE

MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM
ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST
YOU. FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to operate
a recruitment agency, public respondent Administrator Tomas D. Achacoso issued
his challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads:

HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under

existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B.
Espiritu issued an office order designating respondents Atty. Marquez, Atty. Jovencio
Abara and Atty. Ernesto Vistro as members of a team tasked to implement Closure
and Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong
policemen and mediamen Lito Castillo of the People's Journal and Ernie Baluyot of
News Today proceeded to the residence of the petitioner at 615 R.O. Santos St.,
Mandaluyong, Metro Manila. There it was found that petitioner was operating
Hannalie Dance Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into
the premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was
accredited with Moreman Development (Phil.). However, when required to show
credentials, she was unable to produce any. Inside the studio, the team chanced
upon twelve talent performers — practicing a dance number and saw about twenty
more waiting outside, The team confiscated assorted costumes which were duly
receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

292
 Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we
respectfully request that the personal properties seized at her residence last January
26, 1988 be immediately returned on the ground that said seizure was contrary to
law and against the will of the owner thereof. Among our reasons are the following:

1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3, 1987
violates "due process of law" guaranteed under Sec. 1, Art. III, of the
Philippine Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution
which guarantees 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."

3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her consent
and were done with unreasonable force and intimidation, together
with grave abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the Revised Penal
Code.

Unless said personal properties worth around TEN THOUSAND

PESOS (P10,000.00) in all (and which were already due for shipment
to Japan) are returned within twenty-four (24) hours from your receipt
hereof, we shall feel free to take all legal action, civil and criminal, to
protect our client's interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the
instant petition; on even date, POEA filed a criminal complaint against her with the
Pasig Provincial Fiscal, docketed as IS-88-836.1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be
barred are alreadyfait accompli, thereby making prohibition too late, we consider the petition as one
for certiorari in view of the grave public interest involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest)
under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the
Court's resolution.

Under the new Constitution, which states:

. . . 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

293
 the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that
mayors may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "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 person or
things to be seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on the basis
thereof, warrants of arrest or search warrants, may be validly exercised only by
judges, this being evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by law" found in the
counterpart provision of said 1973 Constitution, who, aside from judges, might
conduct preliminary investigations and issue warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be
a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested
in the success of his case. Although his office "is to see that justice is done and not
necessarily to secure the conviction of the person accused," he stands, invariably, as
the accused's adversary and his accuser. To permit him to issue search warrants
and indeed, warrants of arrest, is to make him both judge and jury in his own right,
when he is neither. That makes, to our mind and to that extent, Presidential Decree
No. 1936 as amended by Presidential Decree No. 2002, unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential
Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power
to recommend the arrest and detention of any person engaged in illegal recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose
of giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of
Labor arrest and closure powers:

294
 (b) The Minister of Labor and Employment shall have the power to cause the arrest
and detention of such non-licensee or non-holder of authority if after proper
investigation it is determined that his activities constitute a danger to national security
and public order or will lead to further exploitation of job-seekers. The Minister shall
order the closure of companies, establishment and entities found to be engaged in
the recruitment of workers for overseas employment, without having been licensed or
authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor
Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives
shall have the power to cause the arrest and detention of such non-licensee or non-
holder of authority if after investigation it is determined that his activities constitute a
danger to national security and public order or will lead to further exploitation of job-
seekers. The Minister shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies, establishment and entities found
to be engaged in the recruitment of workers for overseas employment, without
having been licensed or authorized to do so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its
twilight moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare
Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect.

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by
Section 37 of the Immigration Law. We have ruled that in deportation cases, an arrest (of an
undesirable alien) ordered by the President or his duly authorized representatives, in order to carry
out a final decision of deportation is valid. 10 It is valid, however, because of the recognized
supremacy of the Executive in matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs.
Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation." Justice Johnson's opinion is that when
the Chief Executive finds that there are aliens whose continued presence in the
country is injurious to the public interest, "he may, even in the absence of express
law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569;
In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is
detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam
vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956). 12

295
The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It
(the power to order arrests) can not be made to extend to other cases, like the one at bar. Under the
Constitution, it is the sole domain of the courts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was
validly issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus:

xxx xxx xxx

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/communications, letters and facsimile of prints related to
the "WE FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other

publications to promote the objectives and purposes of the
subversive organizations 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 542;

296
 4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Parties of Texas, and the
operations of the Community 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 connection with 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. 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 court 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. 14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other,
who may issue warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom

the President or the Commissioner of Immigration may order arrested, following a
final order of deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials
seized as a result of the implementation of Search and Seizure Order No. 1205.

No costs.

SO ORDERED.

G.R. No. L-45358 January 29, 1937

NARCISO ALVAREZ, petitioner,

vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD, respondents.

297
Godofredo Reyes for petitioner.
Adolfo N. Feliciano for respondents Anti-Usury Board.
No appearance for other respondent.

IMPERIAL, J.:

The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of
Tayabas, ordering the search of his house and the seizure, at any time of the day or night, of certain
accounting books, documents and papers belonging to him in his residence situated in Infanta,
Province of Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury
Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in
question be returned to him.

On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the
Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of
First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner
kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as a money-lender charging usurious rates of interest in
violation of the law. In his oath at the and of the affidavit, the chief of the secret service stated that
his answers to the questions were correct to the best of his knowledge and belief. He did not swear
to the truth of his statements upon his own knowledge of the facts but upon the information received
by him from a reliable person. Upon the affidavit in question the Judge, on said date, issued the
warrant which is the subject matter of the petition, ordering the search of the petitioner's house at
nay time of the day or night, the seizure of the books and documents above-mentioned and the
immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant,
several agents of the Anti-Usury Board entered the petitioner's store and residence at seven o'clock
on the night of June 4, 1936, and seized and took possession of the following articles: internal
revenue licenses for the years 1933 to 1936, one ledger, two journals, two cashbooks, nine order
books, four notebooks, four checks stubs, two memorandums, three bankbooks, two contracts, four
stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one
bundle of credit receipts, one bundle of stubs of purchases of copra, two packages of
correspondence, one receipt book belonging to Luis Fernandez, fourteen bundles of invoices and
other papers many documents and loan contracts with security and promissory notes, 504 chits,
promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation. The
search for and a seizure of said articles were made with the opposition of the petitioner who stated
his protest below the inventories on the ground that the agents seized even the originals of the
documents. As the articles had not been brought immediately to the judge who issued the search
warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent
Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the
office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed
the order of the court. On said date the court issued an order directing Emilio L. Siongco to deposit
all the articles seized within twenty-four hours from the receipt of notice thereof and giving him a
period of five (5) days within which to show cause why he should not be punished for contempt of
court. On June 10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion
praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be
authorized to retain the articles seized for a period of thirty (30) days for the necessary investigation.
The attorney for the petitioner, on June 20th, filed another motion alleging that, notwithstanding the
order of the 8th of said month, the officials of the Anti-Usury Board had failed to deposit the articles
seized by them and praying that a search warrant be issued, that the sheriff be ordered to take all
the articles into his custody and deposit of the Anti-Usury Board be punished for contempt of court.
Said attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had
deposited some documents and papers in the office of the clerk of court, he had so far failed to file
an inventory duly verified by oath of all the documents seized by him, to return the search warrant

298
together with the affidavit it presented in support thereof, or to present the report of the proceedings
taken by him; and prayed that said agent be directed to filed the documents in question immediately.
On the 25th of said month the court issued an order requiring agent Emilio L. Siongco forthwith to file
the search warrant and the affidavit in the court, together with the proceedings taken by him, and to
present an inventory duly verified by oath of all the articles seized. On July 2d of said year, the
attorney for the petitioner filed another petition alleging that the search warrant issue was illegal and
that it had nit yet been returned to date together with the proceedings taken in connection therewith,
and praying that said warrant be cancelled, that an order be issued directing the return of all the
articles seized to the petitioner, that the agent who seized them be declared guilty of contempt of
court, and that charges be filed against him for abuse of authority. On September 10, 1936, the court
issued an order holding: that the search warrant was obtained and issued in accordance with the
law, that it had been duly complied with and, consequently, should not be cancelled, and that agent
Emilio L. Siongco did not commit any contempt of court and must, therefore, be exonerated, and
ordering the chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible
period of two (2) days from the date of notice of said order, why all the articles seized appearing in
the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the Anti-Usury
Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the
articles seized be ordered retained for the purpose of conducting an investigation of the violation of
the Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the
petitioner, the court, on September 25th, issued an order requiring the Anti-Usury Board to specify
the time needed by it to examine the documents and papers seized and which of them should be
retained, granting it a period of five (5) days for said purpose. On the 30th of said month the
assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10) days to
comply with the order of September 25th and that the clerk of court be ordered to return to him all
the documents and papers together with the inventory thereof. The court, in an order of October 2d
of said year, granted him the additional period of ten(10) days and ordered the clerk of court to send
him a copy of the inventory. On October 10th, said official again filed another motion alleging that he
needed sixty (60) days to examine the documents and papers seized, which are designated on
pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42,
43 and 45, and praying that he be granted said period of sixty (60) days. In an order of October 16th,
the court granted him the period of sixty (60) days to investigate said nineteen (19) documents. The
petitioner alleges, and it is not denied by the respondents, that these nineteen (19)documents
continue in the possession of the court, the rest having been returned to said petitioner.

I. A search warrant is an order in writing, issued in the name of the People of the Philippine
Islands, signed by a judge or a justice of the peace, and directed to a peace officer,
commanding him to search for personal property and bring it before the court (section 95,
General Orders. No. 58, as amended by section 6 of Act No. 2886). Of all the rights of a
citizen, few are of greater importance or more essential to his peace and happiness than the
right of personal security, and that involves the exemption of his private affairs, books, and
papers from the inspection and scrutiny of others (In re Pacific Railways Commission, 32
Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S.,
29 Law. ed., 746; Caroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and
seize is necessary to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights or citizen, for the enforcement of no statue is of
sufficient importance to justify indifference to the basis principles of government
(People vs.Elias, 147 N. E., 472).

II. As the protection of the citizen and the maintenance of his constitutional right is one of the
highest duties and privileges of the court, these constitutional guaranties should be given a
liberal construction or a strict construction in favor of the individual, to prevent stealthy
encroachment upon, or gradual depreciation on, the rights secured by them(State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the

299
proceeding is a drastic one, it is the general rule that statutes authorizing searches and
seizure or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189;
Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So.,
613).

III. The petitioner claims that the search warrant issued by the court is illegal because it has
been based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that
he had no personal knowledge of the facts which were to serve as a basis for the issuance of
the warrant but that he had knowledge thereof through mere information secured from a
person whom he considered reliable. To the question "What are your reason for applying for
this search warrant", appearing in the affidavit, the agent answered: "It has been reported to
me by a person whom I consider to be reliable that there are being kept in said premises,
books, documents, receipts, lists, chits, and other papers used by him in connection with his
activities as a money-lender, charging a usurious rate of interest, in violation of the law" and
in attesting the truth of his statements contained in the affidavit, the said agent states that he
found them to be correct and true to the best of his knowledge and belief.

Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides
that "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 top be searched, and the persons or things to be seized." Section 97 of
General Orders, No. 58 provides that "A search warrant shall not issue except for probable
cause and upon application supported by oath particularly describing the place to be
searched and the person or thing to be seized." It will be noted that both provisions require
that there be not only probable cause before the issuance of a search warrant but that the
search warrant must be based upon an application supported by oath of the applicant ands
the witnesses he may produce. In its broadest sense, an oath includes any form of
attestation by which a party signifies that he is bound in conscience to perform an act
faithfully and truthfully; and it is sometimes defined asan outward pledge given by the person
taking it that his attestation or promise is made under an immediate sense of his
responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In
re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N.
W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). 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 (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U.
S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test of sufficiency
of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a
manner that perjury could be charged thereon and affiant be held liable for damages caused
(State vs. Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac.,
746).

It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits
unreasonable searches and seizure. Unreasonable searches and seizures are a menace
against which the constitutional guarantee afford full protection. The term "unreasonable
search and seizure" is not defined in the Constitution or in General Orders No. 58, and it is
said to have no fixed, absolute or unchangeable meaning, although the term has been
defined in general language. All illegal searches and seizure are unreasonable while lawful
ones are reasonable. What constitutes a reasonable or unreasonable search or seizure in
any particular case is purely a judicial question, determinable from a consideration of the

300
circumstances involved, including the purpose of the search, the presence or absence or
probable cause, the manner in which the search and seizure was made, the place or thing
searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law.
ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S.
70 Law, ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231;
Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).

In view of the foregoing and under the above-cited authorities, it appears that the affidavit,
which served as the exclusive basis of the search warrant, is insufficient and fatally defective
by reason of the manner in which the oath was made, and therefore, it is hereby held that the
search warrant in question and the subsequent seizure of the books, documents and other
papers are illegal and do not in any way warrant the deprivation to which the petitioner was
subjected.

IV. Another ground alleged by the petitioner in asking that the search warrant be declared
illegal and cancelled is that it was not supported by other affidavits aside from that made by
the applicant. In other words, it is contended that the search warrant cannot be issued unless
it be supported by affidavits made by the applicant and the witnesses to be presented
necessity by him. Section 1, paragraph 3, of Article III of the Constitution provides that 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.
Section 98 of General Orders, No. 58 provides that the judge or justice must, before issuing
the warrant, examine under oath the complainant and any witnesses he may produce and
take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at
least the applicant or complainant to the application. It is admitted that the judge who issued
the search warrant in this case, relied exclusively upon the affidavit made by agent Mariano
G. Almeda and that he did not require nor take the deposition of any other witness. Neither
the Constitution nor General Orders. No. 58 provides that it is of imperative necessity to take
the deposition of the witnesses to be presented by the applicant or complainant in addition to
the affidavit of the latter. The purpose of both in requiring the presentation of depositions is
nothing more than to satisfy the committing magistrate of the existence of probable cause.
Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense
with that of other witnesses. Inasmuch as the affidavit of the agent in this case was
insufficient because his knowledge of the facts was not personal but merely hearsay, it is the
duty of the judge to require the affidavit of one or more witnesses for the purpose of
determining the existence of probable cause to warrant the issuance of the search warrant.
When the affidavit of the applicant of the complaint contains sufficient facts within his
personal and direct knowledge, it is sufficient if the judge is satisfied that there exist probable
cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or
more witnesses having a personal knowledge of the fact is necessary. We conclude,
therefore, that the warrant issued is likewise illegal because it was based only on the affidavit
of the agent who had no personal knowledge of the facts.

V. The petitioner alleged as another ground for the declaration of the illegality of the search
warrant and the cancellation thereof, the fact that it authorized its execution at night. Section
101 of General Orders, No. 58 authorizes that the search be made at night when it is
positively asserted in the affidavits that the property is on the person or in the place ordered
to be searched. As we have declared the affidavits insufficient and the warrant issued
exclusively upon it illegal, our conclusion is that the contention is equally well founded and
that the search could not legally be made at night.

VI. One of the grounds alleged by the petitioner in support of his contention that the warrant
was issued illegally is the lack of an adequate description of the books and documents to be

301
 seized. Section 1, paragraphs 3, of Article III of the Constitution, and section 97 of General
Orders, No. 58 provide that the affidavit to be presented, which shall serve as the basis for
determining whether probable cause exist and whether the warrant should be issued, must
contain a particular description of the place to be searched and the person or thing to be
seized. These provisions are mandatory and must be strictly complied with (Munch vs. U. S.,
24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U.
S. vs.Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605;
People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the
nature of the goods to be seized, their description must be rather generally, it is not required
that a technical description be given, as this would mean that no warrant could issue
(People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the articles
given in the affidavit presented to the judge was as follows: "that there are being kept in said
premises 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." Taking into consideration the nature of the article so described, it is clear that no other
more adequate and detailed description could have been 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, which he
did.

VII. The last ground alleged by the petitioner, in support of his claim that the search warrant
was obtained illegally, is that the articles were seized in order that the Anti-Usury Board
might provide itself with evidence to be used by it in the criminal case or cases which might
be filed against him for violation of the Anti-usury Law. At the hearing of the incidents of the
case raised before the court it clearly appeared that the books and documents had really
been seized to enable the Anti-Usury Board to conduct an investigation and later use all or
some of the articles in question as evidence against the petitioner in the criminal cases that
may be filed against him. The seizure of books and documents by means of a search
warrant, for the purpose of using them as evidence in a criminal case against the person in
whose possession they were found, is unconstitutional because it makes the warrant
unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the
compulsion of an accused to testify against himself (Uy Kheytin vs.Villareal, 42 Phil,, 886;
Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs. Madden, 297
Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it
appearing that at least nineteen of the documents in question were seized for the purpose of
using them as evidence against the petitioner in the criminal proceeding or proceedings for
violation against him, we hold that the search warrant issued is illegal and that the
documents should be returned to him.

The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of
the search warrant or the proceedings had subsequent to the issuance thereof, because he has
waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200
for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there
was no such waiver, first, because the petitioner has emphatically denied the offer of compromise
and, second, because if there was a compromise it reffered but to the institution of criminal
proceedings fro violation of the Anti-Usury Law. The waiver would have been a good defense for the
respondents had the petitioner voluntarily consented to the search and seizure of the articles in
question, but such was not the case because the petitioner protested from the beginning and stated
his protest in writing in the insufficient inventory furnished him by the agents.

Said board alleges as another defense that the remedy sought by the petitioner does not lie because
he can appeal from the orders which prejudiced him and are the subject matter of his petition.

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Section 222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there
is another plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion,
however, that an appeal from said orders would have to lapse before he recovers possession of the
documents and before the rights, of which he has been unlawfully deprived, are restored to him
(Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera
de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).

Summarizing the foregoing conclusions, we hold:

1. That the provisions of the Constitution and General Orders, No. 58, relative to search and
seizure, should be given a liberal construction in favor of the individual in order to maintain
the constitutional guaranties whole and in their full force;

2. That since the provisions in question are drastic in their form and fundamentally restrict
the enjoyment of the ownership, possession and use of the personal property of the
individual, they should be strictly construed;

3. That the search and seizure made are illegal for the following reasons: (a) Because the
warrant was based solely upon the affidavit of the petitioner who had no personal knowledge
of the facts of probable cause, and (b) because the warrant was issued for the sole purpose
of seizing evidence which would later be used in the criminal proceedings that might be
instituted against the petitioner, for violation of the Anti-Usury Law;

4. That as the warrant had been issued unreasonably, and as it does not appear positively in
the affidavit that the articles were in the possession of the petitioner and in the place
indicated, neither could the search and seizure be made at night;

5. That although it is not mandatory to present affidavits of witnesses to corroborate the

applicant or a complainant in cases where the latter has personal knowledge of the facts,
when the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty
of the judge to require affidavits of other witnesses so that he may determine whether
probable cause exists;

6. That a detailed description of the person and place to be searched and the articles to be
seized is necessary, but whereby, by the nature of the articles to be seized, their description
must be rather general, but is not required that a technical description be given, as this would
mean that no warrant could issue;

7. That the petitioner did not waive his constitutional rights because the offer of compromise
or settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the
search and seizure; and

8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be
an effective, speedy or adequate remedy in the ordinary course of law, and, consequently,
the petition for mandamus filed by him, lies.

For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders
of the respondent court authorizing the relation of the books and documents, are declared illegal and
are set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas
direct the immediate return to the petitioner of the nineteen (19) documents designated on pages 1
to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and
45, without special pronouncement as to costs. So ordered.

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G.R. No. L-45358 January 29, 1937

NARCISO ALVAREZ, petitioner,

vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD, respondents.

Godofredo Reyes for petitioner.

Adolfo N. Feliciano for respondents Anti-Usury Board.
No appearance for other respondent.

IMPERIAL, J.:

The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of
Tayabas, ordering the search of his house and the seizure, at any time of the day or night, of certain
accounting books, documents and papers belonging to him in his residence situated in Infanta,
Province of Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury
Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in
question be returned to him.

On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the
Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of
First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner
kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as a money-lender charging usurious rates of interest in
violation of the law. In his oath at the and of the affidavit, the chief of the secret service stated that
his answers to the questions were correct to the best of his knowledge and belief. He did not swear
to the truth of his statements upon his own knowledge of the facts but upon the information received
by him from a reliable person. Upon the affidavit in question the Judge, on said date, issued the
warrant which is the subject matter of the petition, ordering the search of the petitioner's house at
nay time of the day or night, the seizure of the books and documents above-mentioned and the
immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant,
several agents of the Anti-Usury Board entered the petitioner's store and residence at seven o'clock
on the night of June 4, 1936, and seized and took possession of the following articles: internal
revenue licenses for the years 1933 to 1936, one ledger, two journals, two cashbooks, nine order
books, four notebooks, four checks stubs, two memorandums, three bankbooks, two contracts, four
stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one
bundle of credit receipts, one bundle of stubs of purchases of copra, two packages of
correspondence, one receipt book belonging to Luis Fernandez, fourteen bundles of invoices and
other papers many documents and loan contracts with security and promissory notes, 504 chits,
promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation. The
search for and a seizure of said articles were made with the opposition of the petitioner who stated
his protest below the inventories on the ground that the agents seized even the originals of the
documents. As the articles had not been brought immediately to the judge who issued the search
warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent
Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the
office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed
the order of the court. On said date the court issued an order directing Emilio L. Siongco to deposit
all the articles seized within twenty-four hours from the receipt of notice thereof and giving him a
period of five (5) days within which to show cause why he should not be punished for contempt of
court. On June 10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion
praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be
authorized to retain the articles seized for a period of thirty (30) days for the necessary investigation.

304
The attorney for the petitioner, on June 20th, filed another motion alleging that, notwithstanding the
order of the 8th of said month, the officials of the Anti-Usury Board had failed to deposit the articles
seized by them and praying that a search warrant be issued, that the sheriff be ordered to take all
the articles into his custody and deposit of the Anti-Usury Board be punished for contempt of court.
Said attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had
deposited some documents and papers in the office of the clerk of court, he had so far failed to file
an inventory duly verified by oath of all the documents seized by him, to return the search warrant
together with the affidavit it presented in support thereof, or to present the report of the proceedings
taken by him; and prayed that said agent be directed to filed the documents in question immediately.
On the 25th of said month the court issued an order requiring agent Emilio L. Siongco forthwith to file
the search warrant and the affidavit in the court, together with the proceedings taken by him, and to
present an inventory duly verified by oath of all the articles seized. On July 2d of said year, the
attorney for the petitioner filed another petition alleging that the search warrant issue was illegal and
that it had nit yet been returned to date together with the proceedings taken in connection therewith,
and praying that said warrant be cancelled, that an order be issued directing the return of all the
articles seized to the petitioner, that the agent who seized them be declared guilty of contempt of
court, and that charges be filed against him for abuse of authority. On September 10, 1936, the court
issued an order holding: that the search warrant was obtained and issued in accordance with the
law, that it had been duly complied with and, consequently, should not be cancelled, and that agent
Emilio L. Siongco did not commit any contempt of court and must, therefore, be exonerated, and
ordering the chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible
period of two (2) days from the date of notice of said order, why all the articles seized appearing in
the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the Anti-Usury
Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the
articles seized be ordered retained for the purpose of conducting an investigation of the violation of
the Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the
petitioner, the court, on September 25th, issued an order requiring the Anti-Usury Board to specify
the time needed by it to examine the documents and papers seized and which of them should be
retained, granting it a period of five (5) days for said purpose. On the 30th of said month the
assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10) days to
comply with the order of September 25th and that the clerk of court be ordered to return to him all
the documents and papers together with the inventory thereof. The court, in an order of October 2d
of said year, granted him the additional period of ten(10) days and ordered the clerk of court to send
him a copy of the inventory. On October 10th, said official again filed another motion alleging that he
needed sixty (60) days to examine the documents and papers seized, which are designated on
pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42,
43 and 45, and praying that he be granted said period of sixty (60) days. In an order of October 16th,
the court granted him the period of sixty (60) days to investigate said nineteen (19) documents. The
petitioner alleges, and it is not denied by the respondents, that these nineteen (19)documents
continue in the possession of the court, the rest having been returned to said petitioner.

I. A search warrant is an order in writing, issued in the name of the People of the Philippine
Islands, signed by a judge or a justice of the peace, and directed to a peace officer,
commanding him to search for personal property and bring it before the court (section 95,
General Orders. No. 58, as amended by section 6 of Act No. 2886). Of all the rights of a
citizen, few are of greater importance or more essential to his peace and happiness than the
right of personal security, and that involves the exemption of his private affairs, books, and
papers from the inspection and scrutiny of others (In re Pacific Railways Commission, 32
Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S.,
29 Law. ed., 746; Caroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and
seize is necessary to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights or citizen, for the enforcement of no statue is of

305
sufficient importance to justify indifference to the basis principles of government
(People vs.Elias, 147 N. E., 472).

II. As the protection of the citizen and the maintenance of his constitutional right is one of the
highest duties and privileges of the court, these constitutional guaranties should be given a
liberal construction or a strict construction in favor of the individual, to prevent stealthy
encroachment upon, or gradual depreciation on, the rights secured by them(State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the
proceeding is a drastic one, it is the general rule that statutes authorizing searches and
seizure or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189;
Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So.,
613).

III. The petitioner claims that the search warrant issued by the court is illegal because it has
been based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that
he had no personal knowledge of the facts which were to serve as a basis for the issuance of
the warrant but that he had knowledge thereof through mere information secured from a
person whom he considered reliable. To the question "What are your reason for applying for
this search warrant", appearing in the affidavit, the agent answered: "It has been reported to
me by a person whom I consider to be reliable that there are being kept in said premises,
books, documents, receipts, lists, chits, and other papers used by him in connection with his
activities as a money-lender, charging a usurious rate of interest, in violation of the law" and
in attesting the truth of his statements contained in the affidavit, the said agent states that he
found them to be correct and true to the best of his knowledge and belief.

Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides
that "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 top be searched, and the persons or things to be seized." Section 97 of
General Orders, No. 58 provides that "A search warrant shall not issue except for probable
cause and upon application supported by oath particularly describing the place to be
searched and the person or thing to be seized." It will be noted that both provisions require
that there be not only probable cause before the issuance of a search warrant but that the
search warrant must be based upon an application supported by oath of the applicant ands
the witnesses he may produce. In its broadest sense, an oath includes any form of
attestation by which a party signifies that he is bound in conscience to perform an act
faithfully and truthfully; and it is sometimes defined asan outward pledge given by the person
taking it that his attestation or promise is made under an immediate sense of his
responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In
re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N.
W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). 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 (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U.
S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test of sufficiency
of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a
manner that perjury could be charged thereon and affiant be held liable for damages caused
(State vs. Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac.,
746).

306
It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits
unreasonable searches and seizure. Unreasonable searches and seizures are a menace
against which the constitutional guarantee afford full protection. The term "unreasonable
search and seizure" is not defined in the Constitution or in General Orders No. 58, and it is
said to have no fixed, absolute or unchangeable meaning, although the term has been
defined in general language. All illegal searches and seizure are unreasonable while lawful
ones are reasonable. What constitutes a reasonable or unreasonable search or seizure in
any particular case is purely a judicial question, determinable from a consideration of the
circumstances involved, including the purpose of the search, the presence or absence or
probable cause, the manner in which the search and seizure was made, the place or thing
searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law.
ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S.
70 Law, ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231;
Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).

In view of the foregoing and under the above-cited authorities, it appears that the affidavit,
which served as the exclusive basis of the search warrant, is insufficient and fatally defective
by reason of the manner in which the oath was made, and therefore, it is hereby held that the
search warrant in question and the subsequent seizure of the books, documents and other
papers are illegal and do not in any way warrant the deprivation to which the petitioner was
subjected.

IV. Another ground alleged by the petitioner in asking that the search warrant be declared
illegal and cancelled is that it was not supported by other affidavits aside from that made by
the applicant. In other words, it is contended that the search warrant cannot be issued unless
it be supported by affidavits made by the applicant and the witnesses to be presented
necessity by him. Section 1, paragraph 3, of Article III of the Constitution provides that 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.
Section 98 of General Orders, No. 58 provides that the judge or justice must, before issuing
the warrant, examine under oath the complainant and any witnesses he may produce and
take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at
least the applicant or complainant to the application. It is admitted that the judge who issued
the search warrant in this case, relied exclusively upon the affidavit made by agent Mariano
G. Almeda and that he did not require nor take the deposition of any other witness. Neither
the Constitution nor General Orders. No. 58 provides that it is of imperative necessity to take
the deposition of the witnesses to be presented by the applicant or complainant in addition to
the affidavit of the latter. The purpose of both in requiring the presentation of depositions is
nothing more than to satisfy the committing magistrate of the existence of probable cause.
Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense
with that of other witnesses. Inasmuch as the affidavit of the agent in this case was
insufficient because his knowledge of the facts was not personal but merely hearsay, it is the
duty of the judge to require the affidavit of one or more witnesses for the purpose of
determining the existence of probable cause to warrant the issuance of the search warrant.
When the affidavit of the applicant of the complaint contains sufficient facts within his
personal and direct knowledge, it is sufficient if the judge is satisfied that there exist probable
cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or
more witnesses having a personal knowledge of the fact is necessary. We conclude,
therefore, that the warrant issued is likewise illegal because it was based only on the affidavit
of the agent who had no personal knowledge of the facts.

V. The petitioner alleged as another ground for the declaration of the illegality of the search
warrant and the cancellation thereof, the fact that it authorized its execution at night. Section

307
 101 of General Orders, No. 58 authorizes that the search be made at night when it is
positively asserted in the affidavits that the property is on the person or in the place ordered
to be searched. As we have declared the affidavits insufficient and the warrant issued
exclusively upon it illegal, our conclusion is that the contention is equally well founded and
that the search could not legally be made at night.

VI. One of the grounds alleged by the petitioner in support of his contention that the warrant
was issued illegally is the lack of an adequate description of the books and documents to be
seized. Section 1, paragraphs 3, of Article III of the Constitution, and section 97 of General
Orders, No. 58 provide that the affidavit to be presented, which shall serve as the basis for
determining whether probable cause exist and whether the warrant should be issued, must
contain a particular description of the place to be searched and the person or thing to be
seized. These provisions are mandatory and must be strictly complied with (Munch vs. U. S.,
24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U.
S. vs.Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605;
People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the
nature of the goods to be seized, their description must be rather generally, it is not required
that a technical description be given, as this would mean that no warrant could issue
(People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the articles
given in the affidavit presented to the judge was as follows: "that there are being kept in said
premises 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." Taking into consideration the nature of the article so described, it is clear that no other
more adequate and detailed description could have been 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, which he
did.

VII. The last ground alleged by the petitioner, in support of his claim that the search warrant
was obtained illegally, is that the articles were seized in order that the Anti-Usury Board
might provide itself with evidence to be used by it in the criminal case or cases which might
be filed against him for violation of the Anti-usury Law. At the hearing of the incidents of the
case raised before the court it clearly appeared that the books and documents had really
been seized to enable the Anti-Usury Board to conduct an investigation and later use all or
some of the articles in question as evidence against the petitioner in the criminal cases that
may be filed against him. The seizure of books and documents by means of a search
warrant, for the purpose of using them as evidence in a criminal case against the person in
whose possession they were found, is unconstitutional because it makes the warrant
unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the
compulsion of an accused to testify against himself (Uy Kheytin vs.Villareal, 42 Phil,, 886;
Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs. Madden, 297
Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it
appearing that at least nineteen of the documents in question were seized for the purpose of
using them as evidence against the petitioner in the criminal proceeding or proceedings for
violation against him, we hold that the search warrant issued is illegal and that the
documents should be returned to him.

The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of
the search warrant or the proceedings had subsequent to the issuance thereof, because he has
waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200
for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there
was no such waiver, first, because the petitioner has emphatically denied the offer of compromise

308
and, second, because if there was a compromise it reffered but to the institution of criminal
proceedings fro violation of the Anti-Usury Law. The waiver would have been a good defense for the
respondents had the petitioner voluntarily consented to the search and seizure of the articles in
question, but such was not the case because the petitioner protested from the beginning and stated
his protest in writing in the insufficient inventory furnished him by the agents.

Said board alleges as another defense that the remedy sought by the petitioner does not lie because
he can appeal from the orders which prejudiced him and are the subject matter of his petition.
Section 222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there
is another plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion,
however, that an appeal from said orders would have to lapse before he recovers possession of the
documents and before the rights, of which he has been unlawfully deprived, are restored to him
(Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera
de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).

Summarizing the foregoing conclusions, we hold:

1. That the provisions of the Constitution and General Orders, No. 58, relative to search and
seizure, should be given a liberal construction in favor of the individual in order to maintain
the constitutional guaranties whole and in their full force;

2. That since the provisions in question are drastic in their form and fundamentally restrict
the enjoyment of the ownership, possession and use of the personal property of the
individual, they should be strictly construed;

3. That the search and seizure made are illegal for the following reasons: (a) Because the
warrant was based solely upon the affidavit of the petitioner who had no personal knowledge
of the facts of probable cause, and (b) because the warrant was issued for the sole purpose
of seizing evidence which would later be used in the criminal proceedings that might be
instituted against the petitioner, for violation of the Anti-Usury Law;

4. That as the warrant had been issued unreasonably, and as it does not appear positively in
the affidavit that the articles were in the possession of the petitioner and in the place
indicated, neither could the search and seizure be made at night;

5. That although it is not mandatory to present affidavits of witnesses to corroborate the

applicant or a complainant in cases where the latter has personal knowledge of the facts,
when the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty
of the judge to require affidavits of other witnesses so that he may determine whether
probable cause exists;

6. That a detailed description of the person and place to be searched and the articles to be
seized is necessary, but whereby, by the nature of the articles to be seized, their description
must be rather general, but is not required that a technical description be given, as this would
mean that no warrant could issue;

7. That the petitioner did not waive his constitutional rights because the offer of compromise
or settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the
search and seizure; and

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 8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be
an effective, speedy or adequate remedy in the ordinary course of law, and, consequently,
the petition for mandamus filed by him, lies.

For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders
of the respondent court authorizing the relation of the books and documents, are declared illegal and
are set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas
direct the immediate return to the petitioner of the nineteen (19) documents designated on pages 1
to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and
45, without special pronouncement as to costs. So ordered.

G.R. No. 109633 July 20, 1994

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.

The Solicitor General for plaintiff-appellee.

Topacio and Topacio for accused-appellants.

MELO, J.:

Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth
Judicial Region stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in
Criminal Case No. 236-91 and Illegal Sale of Regulated Drugs in Criminal Case No. 237-91, under
two informations reading, respectively, as follows:

Criminal Case No. 236-91

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
without legal authority, did, then and there, willfully, unlawfully, feloniously and
knowingly have in his possession and control a homemade (paltik)caliber .22
revolver with three (3) live ammunition.

Contrary to law.

Criminal Case No. 237-91

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
without legal authority, did, then and there, willfully, unlawfully, feloniously and
knowingly sell to a poseur buyer an aluminum foil containing Methamphetamine
Hydrochloride also known as "Shabu", a regulated drug.

Contrary to law.

(pp. 20-21, Rollo.)

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Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of the
two cases, the court a quo rendered a decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds the accused Normando del
Rosario y Lopez guilty beyond reasonable doubt in the above-entitled cases and he
is hereby sentenced to undergo imprisonment: in Crim. Case No. 236-91 for Violation
of P.D. 1866 of Seventeen (17) years, Four (4) months and One (1) day of reclusion
temporal, as minimum to Twenty (20) years of reclusion temporal, as maximum and
in Crim. Case No. 237-91 for a violation of Section 15, Article III of Republic Act
6425, as amended of life imprisonment and to pay a fine of P30,000.00, without
subsidiary imprisonment in case of insolvency and to pay the costs in both cases.

The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered
confiscated in favor of the government.

(pp. 28-29, Rollo.)

From said decision, the instant appeal has been interposed.

The prosecution's version of the case, as set forth in appellee's brief, is as follows:

Upon application of SPO3 Raymundo Untiveros of the Philippine National Police

(PNP) of Cavite City, Regional Trial Court Judge Arturo de Guia issued in the
morning of September 4, 1991 a search warrant
(Exh. T, p. 50, Rec.— Crim. Case No. 237-91) authorizing the search and seizure of
an "undetermined quantity of Methamphetamine Hydrochloride commonly known as
shabu and its paraphernalias" in the premises of appellant's house located at 828 R.
Basa St., San Roque, Cavite City. However, the search warrant was not
implemented immediately due to the lack of police personnel to form the raiding team
(pp. 4, 7, tsn., Feb. 4, 1992).

At about 9 o'clock in the evening of that day, a raiding team was finally organized.
SPO3 Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1
Eduardo Novero, SPO3 Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio
and SPO2 Villegas as members
(pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).

In the final briefing of the raiding team at the police station, it was agreed upon that
PO1 Venerando Luna will buy shabu from appellant and after his return from
appellant's house, the raiding team will implement the search warrant (p. 10, tsn.,
Feb. 4, 1992; pp. 17-18, tsn., Dec. 11, 1991). A marked money consisting of a P100
bill bearing serial no. PQ 329406
(Exh. P, p. 51, Rec.) was given by the Station Commander to PO1 Luna and entered
in the police logbook (p. 12, Feb. 4, 1992). PO1 Luna with a companion proceeded to
appellant's house to implement the search warrant. Barangay Capt. Maigue, Norma
del Rosario and appellant witnessed the search at appellant's house (p. 10, tsn.,
Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco found a black canister
containing shabu, an aluminum foil, a paltik .22 caliber (Exh. O) atop the TV set,
three used ammunitions in a cup and three wallets (Exhs. Q, R, S), one containing
the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1992). SPO1 Novero found
inside a show box aluminum foils, napkins and a burner (p. 9, tsn., March 11, 1992).
SPO3 de la Cruz turned over the wallet containing the marked money to PO3

311
 Onrubio (p. 8, 32, tsn., Jan. 7, 1992). The seized items were photographed thereat
by Fred Agana and then turned over to PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992).
SPO3 Untiveros issued receipts (Exhs. V, V-1, pp. 53-54, Rec.) for the seized items
with Barangay Capt. Maigue and appellant's sister Norma as signing witnesses. He
also made a return (Exh. U, p. 52, Rec.) of the seized items to the court (pp. 11-155,
tsn., Feb. 18, 1992.).

At police station, the seized items were taped and initialed by SPO3 de la Cruz (p.
33, tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco, forwarded
to NBI Forensic Chemist Mary Ann Aranas for laboratory analysis the aluminum foil
(Exhs. A, J, pp. 37, 46, Rec.) containing suspected shabu bought by PO1 Luna from
appellant in the
buy-bust operation as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.)
containing suspected marijuana which were confiscated by virtue of the search
warrant.

The findings of NBI Forensic Chemist Aranas disclosed that all the specimen
submitted to her for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave
positive results for Methamphetamine Hydrochloride (pp. 2-9, tsn., Dec. 3, 1991;
Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).

(pp. 102-105, Rollo.)

Carefully evaluating the evidence on record, we believe that the prosecution has failed to prove the
guilt of accused-appellant. Much is to be desired in the manner the police authorities effected the
arrest of accused-appellant and the same observation may be made with regard to the way the
prosecution conducted its case.

Foremost among the inadequacies of the prosecution is its failure to call to the witness stand PO1
Venerando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to establish
the purported sale of shabu by accused-appellant to Venerando Luna, the supposed poseur-buyer.
The omission to present the poseur-buyer casts serious doubts that an illegal sale of a dangerous
drug actually took place.

The trial court gave much weight to the testimonies of the police members of the buy-
bust operation. However, the prosecution did not present as witness the supposed
poseur-buyer. Such omission casts serious doubt on appellant's guilt because
without the testimony of the
poseur-buyer, there is no convincing evidence to show that appellant sold marijuana.
The testimonies of the rest of the buy-bust operation are hearsay in view of the fact
that the poseur-buyer, was never presented at the trial. There was even no testimony
that when the accused-appellant handed the stuff to the poseur-buyer that the latter
in turn handed the marked money. The failure of the prosecution to present the
alleged buyer of the marijuana was a fatal flaw in the case against the accused.

(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])

The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged
Poseur-buyer, bought shabu from accused-appellant was derived solely from what Luna supposedly
told him (pp. 19-20, tsn., December 11, 1991) and, therefore, is patently hearsay evidence, without
any evidentiary weight whatsoever. Likewise, the statements of prosecution witnesses Policemen

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Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to the alleged sale of shabu
are hearsay, without weight, as all of them were not present during the alleged sale.

According to the version of the prosecution, during the alleged buy-bust operation, accused-
appellant handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and Luna
in turn paid accused-appellant a marked P100 bill and then returned to the police station and
informed the raiding team that he had already bought the shabu from accused-appellant. Thereupon,
the raiding team proceeded to the house of accused-appellant to implement the search warrant. The
version of the prosecution is highly incredible. The record is devoid of any reason why the police
officers did not make any attempt to arrest accused-appellant at the time he allegedly sold the shabu
to Veneracion Luna who was accompanied by another police officer. That was the opportune
moment to arrest accused-appellant. The version foisted by the prosecution upon this Court is
contrary to human experience in the ordinary course of human conduct. The usual procedure in a
buy-bust operation is for the police officers to arrest the pusher of drugs at the very moment he
hands over the dangerous drug to the poseur-buyer. That is the very reason why such a police
operation is called a "buy-bust" operation. The police poseur-buyer "buys" dangerous drugs from the
pusher and "busts" (arrests) him the moment the pusher hands over the drug to the police officer.

We thus entertain serious doubts that the shabu contained in a small canister was actually seized or
confiscated at the residence of accused-appellant. In consequence, the manner the police officers
conducted the subsequent and much-delayed search is highly irregular. Upon bargaining into the
residence of accused-appellant, the police officers found him lying down and they immediately
arrested and detained him in the living room while they searched the other parts of the house.
Although they fetched two persons to witness the search, the witnesses were called in only after the
policemen had already entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991),
and, therefore, the policemen had more than ample time to plant the shabu. Corollary to the
constitutional precept that, in all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved (Sec. 14(2), Article III, Constitution of the Republic of the Philippines) is the
rule that in order to convict an accused the circumstances of the case must exclude all and each and
every hypothesis consistent with his innocence (People vs. Tanchoco; 76 Phil. 463 [1946]; People
vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144 SCRA 516 [1986]). The facts of the case
do not rule out the hypothesis that accused- appellant is innocent.

At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a

canister and allegedly seized at his house, for the charge against him was for selling shabu with the
information alleging that the "accused, without legal authority did . . . sell to a poseur buyer an
aluminum foil containing Methamphetamine Hydrochloride . . ." Sale is totally different from
possession. Article 1458 of the Civil Code defines sale as a contract whereby "one of the contracting
parties obligates himself to transfer the ownership of and to deliver a determine thing, and the other
to pay therefor a price certain in money or its equivalent", while "possession is the holding of a thing
or the enjoyment of a right" as defined by Article 523 of the Civil Code. Accused-appellant cannot be
convicted of a crime which is not charged in the information for to do so would deny him the due
process of law (People vs. Despavellador, 1 SCRA 205 [1961]; People vs. Mori, 55 SCRA 382
[1974]).

Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The
search warrant implemented by the raiding party authorized only the search and seizure of ". . . the
described quantity of Methamphetamine Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was authorized to seize only
shabu and paraphernalia for the use thereof and no other. A search warrant is not a sweeping
authority empowering a raiding party to undertake a finishing expedition to seize and confiscate any
and all kinds of evidence or articles relating to a crime. The Constitution itself (Section 2, Article III)
and the Rules of Court (Section 3, Rule 126) specifically mandate that the search warrant must

313
particularly describe the things to be seized. Thus, the search warrant was no authority for the police
officers to seize the firearm which was not mentioned, much less described with particularity, in the
search warrant. Neither may it be maintained that the gun was seized in the course of an arrest, for
as earlier observed, accused-appellant's arrest was far from regular and legal. Said firearm, having
been illegally seized, the same is not admissible in evidence (Stonehill vs. Diokno, 20 SCRA 383
[1967]). The Constitution expressly ordains the exclusion in evidence of illegally seized articles.

Any evidence obtained in violation of this or the preceding section shall be

inadmissible for any purpose in any proceeding.

(Section 3[2], Article III, Constitution of the Republic of the Philippines).

With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of
evidence to support the charge of illegal possession of firearm, against accused-appellant.

The same may be said of the charge of illegal possession of ammunition.

WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby
ACQUITTED in Criminal Case No. 236-91 and Criminal Case No. 237-91.

The immediate release of accused-appellant is hereby ordered unless there exists a pending valid
cause against him.

The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in favor of
the government.

G.R. No. 95847-48. March 10, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-

appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN

ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED
HAS COMMITTED THE CRIME; CASE AT BAR. — The policemen arrested Gerente only some
three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the
hospital and when they inspected the scene of the crime, they found the instruments of death: a
piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The
eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her
neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had
personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others
had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest
until they could obtain a warrant, he would have fled the law as his two companions did.

2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN
INCIDENT TO LAWFUL ARREST; RATIONALE. — The search conducted on Gerente's person was

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likewise lawful because it was made as an incident to a valid arrest. This is in accordance with
Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 12. Search incident to
lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without a search warrant." The frisk
and search of appellant's person upon his arrest was a permissible precautionary measure of
arresting officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual
being arrested may be frisked for concealed weapons that may be used against the arresting officer
and all unlawful articles found his person, or within his immediate control may be seized."

3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. —

There is no merit in appellant's allegation that the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr.
Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one
person only. what Dr. Bernales stated was a mere possibility that only one person dropped the
concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does
not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to
commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the
eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions
conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a
hollow block and caused his death. "When there is no evidence indicating that the principal witness
for the prosecution was moved by improper motive, the presumption is that he was not so moved
and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence,
the trial court did not err in giving full credit to Edna Reyes' testimony.

4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. — The Solicitor General
correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the
death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs.
Sison, 189 SCRA 643.

DECISION

GRIÑO-AQUINO, J p:

This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch
172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous
Drugs Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12)
years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of
Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive
portion of the appealed decision reads:

"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal
Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and
hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as
minimum to twenty years as maximum, and a fine of twelve thousand, without subsidiary
imprisonment in case of insolvency, and to pay the costs.

"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond
reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor
mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to
indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as

315
funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The
accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25,
Rollo.)

Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which
was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro
Manila. The Information reads:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without
justification, did then and there wilfully, unlawfully and feloniously have in his possession and control
dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are
considered prohibited drugs." (p. 2, Rollo.)

The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged
with Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the
same Assistant Provincial Prosecutor, as follows:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together
with two (2) others who are still at large and against whom the preliminary investigation has not yet
been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating
together and mutually helping one another, armed with a piece of wood and hallow (sic) block and
with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with
evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow
block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting
serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.)

Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente,
together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana
in the house of the appellant which is about six (6) meters away from the house of the prosecution
witness who was in her house on that day. She overheard the three men talking about their intention
to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si
Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin
'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August
24, 1990.)

Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m.
of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the
killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and
Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy
Echigoren dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to
a place behind the house of Gerente.

At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station
received a report from the Palo Police Detachment about a mauling incident. He went to the
Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials
that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard
and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and
Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There
they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They

316
were informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she
pointed to Gabriel Gerente as one of the three men who killed Clarito.

The policemen proceeded to the house of the appellant who was then sleeping. They told him to
come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked
appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette
foil. The dried leaves were sent to the National Bureau of Investigation for examination. The
Forensic Chemist found them to be marijuana.

Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and
Totoy Echigoren, are still at large.

On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin
Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder.

When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the
two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of
Violation of Section 8 of R.A. 6425 and of Murder.

In this appeal of the appellant, the following errors are ascribed to the trial court:

1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the
prosecution; and

2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite
the absence of evidence required to prove his guilt beyond reasonable doubt.

The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in
violation of his constitutional right not to be subjected to illegal search and seizure, for the dried
marijuana leaves were seized from him in the course of a warrantless arrest by the police officers.
We do not agree.

The search of appellant's person and the seizure of the marijuana leaves in his possession were
valid because they were incident to a lawful warrantless arrest.

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:

'SECTION 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without
a warrant, arrest a person:

"(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;"

"(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; . . .'

The policemen arrested Gerente only some three (3) hours after Gerente and his companions had
killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime,
they found the instruments of death: a piece of wood and a concrete hollow block which the killers
had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening
to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those

317
circumstances, since the policemen had personal knowledge of the violent death of Blace and of
facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without
a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the
law as his two companions did.

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1)
day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon
the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus:

"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of
his crime without a warrant, would be to leave society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many
instances."

The search conducted on Gerente's person was likewise lawful because it was made as an incident
to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court
which provides:

"SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant."

The frisk and search of appellant's person upon his arrest was a permissible precautionary measure
of arresting officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual
being arrested may be frisked for concealed weapons that may be used against the arresting officer
and all unlawful articles found in his person, or within his immediate control may be seized."

There is no merit in appellant's allegation that the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr.
Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one
person only.

What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow
block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the
other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime,
the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony
of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace,
that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused
his death. "When there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the presumption is that he was not so moved and his testimony is
entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not
err in giving full credit to Edna Reyes' testimony.

Appellant's failure to escape (because he was very drunk) is no indicium of his innocence.

The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as
civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with
our ruling in People vs. Sison, 189 SCRA 643.

318
WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity
awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00.

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO
DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS
V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG.
GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,

vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T.

ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIÑO, LT. COL. REX
D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer,
PC-INP Detention Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND
DANNY RIVERA: VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.

G.R. No. 85727 October 3, 1991

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS

ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO:

ALFREDO NAZARENO,petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro
Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and
P/SGT. MALTRO AROJADO,respondents.

319
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

The Solicitor General for the respondents.

RESOLUTION

PER CURIAM:p

Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking
reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which
dismissed the petitions, with the following dispositive part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu
vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from
P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision
did not rule — as many misunderstood it to do — that mere suspicion that one is Communist Party
or New People's Army member is a valid ground for his arrest without warrant. Moreover, the
decision merely applied long existing laws to the factual situations obtaining in the several petitions.
Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar
organizations and penalizing membership therein be dealt with shortly). It is elementary, in this
connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as
the elected representative of the people — not the Court — that should repeal, change or modify
them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned arrests made without
warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule
113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the
persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;

3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of
the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their
possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial
admissions;

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 4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.

We find no merit in the motions for reconsideration.

The writ of habeas corpus exists as a

It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3

speedy and effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of
the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is
illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked
into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would
follow that the detention resulting from such arrests also in accordance with law.

The law
There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6

expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which
states the grounds upon which a valid arrest, without warrant, can be conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said
Rule 113, which read:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to he arrested has committed, is actually committing,
or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrest has committed it; and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without
warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was
committing an offense, when arrested because Dural was arrested for being a member of the New
People's Army, an outlawed organization, where membership penalized, 7 and for subversion which,
like rebellion is, under the doctrine of Garcia vs. Enrile, 8a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such

crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion
thereof, or incident thereto, or in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set them apart from the common

321
 offenses, aside from their essentially involving a massive conspiracy of nationwide
magnitude. . . .

Given the ideological content of membership in the CPP/NPA which includes armed struggle for the
overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR
PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes
Hospital. Dural was identified as one of several persons who the day before his arrest, without
warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That
Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural, given another opportunity, would have shot or would
shoot other policemen anywhere as agents or representatives of organized government. It is in this
sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense.
Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end
upon their commission, subversion and rebellion are anchored on an ideological base which
compels the repetition of the same acts of lawlessness and violence until the overriding objective of
overthrowing organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his
membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual
facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under the facts of the Umil case,
that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which
requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has
just committed an offense, and second, that the arresting peace officer or private person has
personal knowledge of facts indicating that the person to be arrested is the one who committed the
offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal
knowledge of facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be based
upon probable cause, which means an actual belief or reasonable grounds of suspicion 9
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by

A reasonable suspicion therefore must be founded

circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10

on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow
man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2)
Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was
listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot
wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to
engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first — the day before, or on 31
January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second — a
wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third

322
— as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man
was in reality Rolando Dural.

believe
In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13

that the confidential information of the arresting officers to the effect that Dural was then being
treated in St. Agnes Hospital was actually received from the attending doctor and hospital
management in compliance with the directives of the law, 14 and, therefore, came from reliable
sources.

As to the condition that "probable cause" must also be coupled with acts done in good faith by the
officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed
to have conducted the same in good faith, considering that law enforcers are presumed to regularly
perform their official duties. The records show that the arresting officers did not appear to have been
ill-motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was
made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an
information charging double murder with assault against agents of persons in authority was filed
against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was
thus promptly placed under judicial custody (as distinguished fro custody of the arresting officers).
On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The
judgment of conviction is now on appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon
Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are
also justified. They were searched pursuant to search warrants issued by a court of law and were
found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore,
caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule
113, Rules of Court. Parenthetically, it should be mentioned here that a few davs after their arrests
without warrant, informations were filed in court against said petitioners, thereby placing them within
judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas
corpus by announcing to this Court during the hearing of these petitions that he had chosen to
remain in detention in the custody of the authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by a former NPA
about the operations of the CPP and NPA in Metro Manila and that a certain house occupied
by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights,
Marikina, Metro Manila was being used as their safehouse; that in view of this information,
the said house was placed under military surveillance and on 12 August 1988, pursuant to a
search warrant duly issued by court, a search of the house was conducted; that when
Renato Constantine was then confronted he could not produce any permit to possess the
firearms, ammunitions, radio and other communications equipment, and he admitted that he
was a ranking member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that
he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group.

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 3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque;17 that, at the time of her arrest, the military
agents found subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the
agents frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose
house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of
Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make
the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the
other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato
Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple),
which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of
the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the
safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were
unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions
and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests,
they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding
informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by
the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly
performed.

With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo,
Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That
would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to

An arrest is therefore in the nature of an administrative measure. The power to

prosecute and secure the punishment therefor. 21

arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are
met. This rule is founded on an overwhelming public interest in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set
forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed
guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable
cause" is the reason that can validly compel the peace officers, in the performance of their duties
and in the interest of public order, to conduct an arrest without warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent

But if they do not strictly comply with the said conditions, the arresting officers
and acquitted, the arresting officers are not liable. 24

can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil
Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the
attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the

324
corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of
drivers and sympathizers, where he said, among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November

Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for
1988. 28

uttering the above-quoted language which, in the perception of the arresting officers, was inciting to
sedition.

Many persons may differ as to the validity of such perception and regard the language as falling
within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist,
during the pre-trial or trial on the merits, that he was just exercising his right to free speech
regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers
to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still
another thing. In the balancing of authority and freedom, which obviously becomes difficult at times,
the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest(not
conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced
from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and academic. For
Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not
appear. Because of this development, the defense asked the court a quo at the resumption of the
hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been
provisionally dismissed and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo
Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00
o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing,
was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of
Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested
Nazareno, without warrant, for investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14
days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that
Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police
were alerted) and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events
surrounding his arrest and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two
(2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein
as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January
1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

325
 On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the
Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering
said court to hear the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a
resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by
reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case
and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against
him).

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests
of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section
5(b) of Rule 113. They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua.
He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission.

that he was an NPA courier. On the other hand, in the case of Amelia
In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30

Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in
her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons of their membership in
the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in
their possession. But again, these admissions, as revealed by the records, strengthen the Court's
perception that truly the grounds upon which the arresting officers based their arrests without
warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the
commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To
note these admissions, on the other hand, is not to rule that the persons arrested are already guilty
of the offenses upon which their warrantless arrests were predicated. The task of determining the
guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It
pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be
abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the
light of prevailing conditions where national security and liability are still directly challenged perhaps
with greater vigor from the communist rebels. What is important is that everv arrest without warrant
be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into — and
all other appropriate courts are enjoined to do the same — the legality of the arrest without warrant
so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution,
are not met, then the detainee shall forthwith be ordered released; but if such conditions are met,
then the detainee shall not be made to languish in his detention but must be promptly tried to the
end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party
member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The
Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere

326
unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113,
Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the
arresting peace officers, and, further, on the basis of, as the records show, the actual facts and
circumstances supporting the arrests. More than the allure of popularity or palatability to some
groups, what is important is that the Court be right.

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED.
This denial is FINAL.

SO ORDERED.

Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ.,
concur.

G.R. No. 93239 March 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDISON SUCRO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Fidencio S. Raz for accused-appellant.

GUTIERREZ, JR., J.:

Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous
Drugs Act, under an Information which reads:

That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality
of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, acting as a pusher or broker in the business of
selling, administering, delivery, giving away to another and/or distributing prohibited drugs,
did then and there wilfully, unlawfully and feloniously and without authority of law have in his
possession and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea
bags of dried marijuana leaves which were confiscated from him by the police authorities of
Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana leaves to a customer.
(Rollo, p. 9)

Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the
offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of
which reads:

WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of
prohibited drug under Section 4, Article II of the Dangerous Drug Act, as amended, and
sentencing him to suffer the penalty of life imprisonment, and pay a fine of P20,000, and
costs. He shall be entitled to full credit in the service of his sentence with the period for which
he has undergone preventive imprisonment to the date of promulgation of this judgment. All
the items of marijuana confiscated in this case are declared forfeited in favor of the State.
(Rollo, p. 41)

327
From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the
following as errors allegedly committed by the court a quo, to wit:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION

EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS
DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN WITHOUT THE REQUIRED
WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN THE ACT OF
COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST.

II

THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF
THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE
DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE
IMPRISONMENT AND TO PAY A FINE OF P 20,000.00. (Appellant's Brief, p. 1)

The antecedent facts of the case as summarized by the Solicitor General are as follows:

On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed
by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the
activities of appellant Edison Sucro, because of information gathered by Seraspi that Sucro
was selling marijuana. (p. 6, TSN, May 2,1989).

As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself under the
house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado,
about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the
chapel, taking something which turned out later to be marijuana from the compartment of a
cart found inside the chapel, and then return to the street where he handed the same to a
buyer, Aldie Borromeo. After a while appellant went back to the chapel and again came out
with marijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It was at this
instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on. P/Lt.
Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M.,
Pat. Fulgencio again called up Seraspi to report that a third buyer later Identified as Ronnie
Macabante, was transacting with appellant. (pp. 18-19, Ibid)

At that point, the team of P/Lt. Seraspi proceeded to the area and while the police officers
were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept
Macabante and appellant. P/Lt. Seraspi and his team caught up with Macabante at the
crossing of Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon seeing the
police, Macabante threw something to the ground which turned out to be a tea bag of
marijuana. (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante readily admitted that
he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24,
1989) The police team was able to overtake and arrest appellant at the corner of C. Quimpo
and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart
inside the chapel and another teabag from Macabante, The teabags of marijuana were sent
to the PC-INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The
specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of marijuana.
(pp. 47, TSN, Sept. 4, 1989)" (Appellee's Brief, pp. 3-6)

328
As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant
of the accused is lawful and consequently, whether or not the evidence resulting from such arrest is
admissible.

We rule in the affirmative.

The accused-appellant contends that his arrest was illegal, being a violation of his rights granted
under Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time for the
police officers to apply for a search and arrest warrants considering that Fulgencio informed his
Station Commander of the activities of the accused two days before March 21, 1989, the date of his
arrest.

This contention is without merit.

Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest
without warrant is considered lawful. The rule states:

Arrest without warrant, when lawful. — A peace officer or private person may, without
warrant, arrest a person:

(a) When in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; (Emphasis supplied)

An offense is committed in the presence or within the view of an officer, within the meaning of the
rule authorizing an arrest without a warrant, when the officer sees the offense, although at a
distance, or hears the disturbances created thereby and proceeds at once to the scene thereof.
(U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910])

The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the
activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters
away from Regalado's house.

Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro
talk to some persons, go inside the chapel, and return to them and exchange some things. These,
Sucro did three times during the time that he was being monitored. Fulgencio would then relay the
on-going transaction to P/Lt. Seraspi.

Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught
throwing the marijuana stick and when confronted, readily admitted that he bought the same from
accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and
therefore, had just committed an illegal act of which the police officers had personal knowledge,
being members of the team which monitored Sucro's nefarious activity.

The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that
police officers have personal knowledge of the actual commission of the crime when it had earlier
conducted surveillance activities of the accused. Thus, it stated:

329
 When Luciano and Caraan reached the place where the alleged transaction would take
place and while positioned at a street comer, they saw appellant Regalado Bati and Warner
Marquez by the side of the street about forty to fifty meters away from them (the public
officers). They saw Marquez giving something to Bati, who, thereafter handed a wrapped
object to Marquez who then inserted the object inside the front of his pants in front of his
abdomen while Bati, on his part, placed the thing given to him inside his pocket. (p. 2)

xxx xxx xxx

. . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies
were based on their actual and personal knowledge of the events that took place leading to
appellant's arrest. They may not have been within hearing distance, specially since
conversation would expectedly be carried on in hushed tones, but they were certainly near
enough to observe the movements of the appellant and the buyer. Moreover, these
prosecution witnesses are all law enforcers and are, therefore, presumed to have regularly
performed their duties in the absence of proof to the contrary (People v.
Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987)

The accused questions the failure of the police officers to secure a warrant considering that
Fulgencio himself knew of Sucro's activities even prior to the former's joining the police force.
Fulgencio reported Sucro's activities only three days before the incident.

As the records reveal, Fulgencio and Sucro had known each other since their childhood years and
that after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in their
locality. Hence, it is possible that because of this friendship, Fulgencio hesitated to report his
childhood friend and merely advised him not to engage in such activity. However, because of reliable
information given by some informants that selling was going on everyday, he was constrained to
report the matter to the Station Commander.

On the other hand, the failure of the police officers to secure a warrant stems from the fact that their
knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance
of a search warrant. What is paramount is that probable cause existed. Thus, it has been held in the
case of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991):

In the instant case, it was firmly established from the factual findings of the trial court that the
authorities had reasonable ground to believe that appellant would attempt to bring in
contraband and transport it within the country. The belief was based on intelligence reports
gathered from surveillance activities on the suspected syndicate, of which appellant was
touted to be a member. Aside from this, they were also certain as to the expected date and
time of arrival of the accused from China. But such knowledge was clearly insufficient to
enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the
important thing is that there was probable cause to conduct the warrantless search, which
must still be present in such a case.

As the Solicitor General has pointed out:

There are several instances when a warrantless search and seizure can be effected without
necessarily being preceded by an arrest provided the same is effected on the basis of
probable cause (e.g. stop and search without warrant at checkpoints). Between warrantless
searches and seizures at checkpoints and in the case at bar the latter is more reasonable
considering that unlike in the former, it was effected on the basis of probable cause. Under

330
 the circumstances (monitoring of transactions) there existed probable cause for the arresting
officers, to arrest appellant who was in fact selling marijuana and to seize the contraband.

That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon,
Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search
incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which
provides that a person lawfully arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search warrant. (People v.
Castiller, G.R. No. 87783, August 6, 1990)

The accused-appellant claims that the arrest having been done without warrant, it follows that the
evidence obtained therefrom is inadmissible.

As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the
requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible
in evidence.

Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for
testifying could be merely to escape prosecution.

We quote the trial court's finding as to the testimony of Macabante:

The non-filing of a complaint against him for possession of marijuana may have been the
reason of (sic) his willingness to testify in court against the accused. But this does not
necessarily taint the evidence that proceeds from his lips. As explained by Lt. Seraspi, the
best sources of information against drug pushers are usually their customers, especially if as
in this case, there is no other direct evidence of the selling except the testimony of the buyer.
We accept this observation as a realistic appraisal of a situation in which drug users are, and
should be employed by law enforcement authorities to bolster the drive against pushers who
are the real felons in our society. We have observed the demeanor of the witness in court,
and found him to be straightforward, unhesitating, and spontaneous in his declarations, so
that we are satisfied as to his intention and disposition to tell the truth (Rollo, p. 40)

Time and again it has been held that the findings of the trial court are entitled to great weight and
should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts
of weight and importance, it being acknowledged. that the court below, having seen and heard the
witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al.,
G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v.
Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]).

Furthermore, the testimony of Macabante was corroborated on material points by public officers
Fulgencio and Seraspi.

There is nothing in the record to suggest that the police officers were compelled by any motive than
to accomplish their mission to capture a drug pusher in the execution of the crime, the presumption
being that police officers perform their duties regularly in the absence of any evidence to the contrary
(Rule 131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v.
Natipravat, 145 SCRA 483 [1986]).

The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the
items seized were all positive for marijuana.

331
In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which
is unavailing considering that he was positively identified by Macabante to be the person from whom
he bought marijuana.

Sucro alleges that he could not have committed the crime since he was with his uncle and cousin
distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude
the possibility that he was present in the vicinity as established by his admission that he moved a lot
and even had the occasion to meet Macabante on the street.

It is well-settled that mere denials cannot prevail against the positive identification of the appellant as
the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco,
170 SCRA 681 [1989])

Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the
offense charged. The trial court's decision must be upheld.

WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

G.R. No. 93239 March 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDISON SUCRO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Fidencio S. Raz for accused-appellant.

GUTIERREZ, JR., J.:

Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous
Drugs Act, under an Information which reads:

That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality
of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, acting as a pusher or broker in the business of
selling, administering, delivery, giving away to another and/or distributing prohibited drugs,
did then and there wilfully, unlawfully and feloniously and without authority of law have in his
possession and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea
bags of dried marijuana leaves which were confiscated from him by the police authorities of
Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana leaves to a customer.
(Rollo, p. 9)

Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the
offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of
which reads:

WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of
prohibited drug under Section 4, Article II of the Dangerous Drug Act, as amended, and
sentencing him to suffer the penalty of life imprisonment, and pay a fine of P20,000, and

332
 costs. He shall be entitled to full credit in the service of his sentence with the period for which
he has undergone preventive imprisonment to the date of promulgation of this judgment. All
the items of marijuana confiscated in this case are declared forfeited in favor of the State.
(Rollo, p. 41)

From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the
following as errors allegedly committed by the court a quo, to wit:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION

EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS
DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN WITHOUT THE REQUIRED
WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN THE ACT OF
COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST.

II

THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF
THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE
DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE
IMPRISONMENT AND TO PAY A FINE OF P 20,000.00. (Appellant's Brief, p. 1)

The antecedent facts of the case as summarized by the Solicitor General are as follows:

On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed
by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the
activities of appellant Edison Sucro, because of information gathered by Seraspi that Sucro
was selling marijuana. (p. 6, TSN, May 2,1989).

As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself under the
house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado,
about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the
chapel, taking something which turned out later to be marijuana from the compartment of a
cart found inside the chapel, and then return to the street where he handed the same to a
buyer, Aldie Borromeo. After a while appellant went back to the chapel and again came out
with marijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It was at this
instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on. P/Lt.
Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M.,
Pat. Fulgencio again called up Seraspi to report that a third buyer later Identified as Ronnie
Macabante, was transacting with appellant. (pp. 18-19, Ibid)

At that point, the team of P/Lt. Seraspi proceeded to the area and while the police officers
were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept
Macabante and appellant. P/Lt. Seraspi and his team caught up with Macabante at the
crossing of Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon seeing the
police, Macabante threw something to the ground which turned out to be a tea bag of
marijuana. (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante readily admitted that
he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24,
1989) The police team was able to overtake and arrest appellant at the corner of C. Quimpo
and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart
inside the chapel and another teabag from Macabante, The teabags of marijuana were sent

333
 to the PC-INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The
specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of marijuana.
(pp. 47, TSN, Sept. 4, 1989)" (Appellee's Brief, pp. 3-6)

As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant
of the accused is lawful and consequently, whether or not the evidence resulting from such arrest is
admissible.

We rule in the affirmative.

The accused-appellant contends that his arrest was illegal, being a violation of his rights granted
under Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time for the
police officers to apply for a search and arrest warrants considering that Fulgencio informed his
Station Commander of the activities of the accused two days before March 21, 1989, the date of his
arrest.

This contention is without merit.

Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest
without warrant is considered lawful. The rule states:

Arrest without warrant, when lawful. — A peace officer or private person may, without
warrant, arrest a person:

(a) When in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; (Emphasis supplied)

An offense is committed in the presence or within the view of an officer, within the meaning of the
rule authorizing an arrest without a warrant, when the officer sees the offense, although at a
distance, or hears the disturbances created thereby and proceeds at once to the scene thereof.
(U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910])

The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the
activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters
away from Regalado's house.

Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro
talk to some persons, go inside the chapel, and return to them and exchange some things. These,
Sucro did three times during the time that he was being monitored. Fulgencio would then relay the
on-going transaction to P/Lt. Seraspi.

Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught
throwing the marijuana stick and when confronted, readily admitted that he bought the same from
accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and
therefore, had just committed an illegal act of which the police officers had personal knowledge,
being members of the team which monitored Sucro's nefarious activity.

334
The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that
police officers have personal knowledge of the actual commission of the crime when it had earlier
conducted surveillance activities of the accused. Thus, it stated:

When Luciano and Caraan reached the place where the alleged transaction would take
place and while positioned at a street comer, they saw appellant Regalado Bati and Warner
Marquez by the side of the street about forty to fifty meters away from them (the public
officers). They saw Marquez giving something to Bati, who, thereafter handed a wrapped
object to Marquez who then inserted the object inside the front of his pants in front of his
abdomen while Bati, on his part, placed the thing given to him inside his pocket. (p. 2)

xxx xxx xxx

. . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies
were based on their actual and personal knowledge of the events that took place leading to
appellant's arrest. They may not have been within hearing distance, specially since
conversation would expectedly be carried on in hushed tones, but they were certainly near
enough to observe the movements of the appellant and the buyer. Moreover, these
prosecution witnesses are all law enforcers and are, therefore, presumed to have regularly
performed their duties in the absence of proof to the contrary (People v.
Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987)

The accused questions the failure of the police officers to secure a warrant considering that
Fulgencio himself knew of Sucro's activities even prior to the former's joining the police force.
Fulgencio reported Sucro's activities only three days before the incident.

As the records reveal, Fulgencio and Sucro had known each other since their childhood years and
that after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in their
locality. Hence, it is possible that because of this friendship, Fulgencio hesitated to report his
childhood friend and merely advised him not to engage in such activity. However, because of reliable
information given by some informants that selling was going on everyday, he was constrained to
report the matter to the Station Commander.

On the other hand, the failure of the police officers to secure a warrant stems from the fact that their
knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance
of a search warrant. What is paramount is that probable cause existed. Thus, it has been held in the
case of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991):

In the instant case, it was firmly established from the factual findings of the trial court that the
authorities had reasonable ground to believe that appellant would attempt to bring in
contraband and transport it within the country. The belief was based on intelligence reports
gathered from surveillance activities on the suspected syndicate, of which appellant was
touted to be a member. Aside from this, they were also certain as to the expected date and
time of arrival of the accused from China. But such knowledge was clearly insufficient to
enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the
important thing is that there was probable cause to conduct the warrantless search, which
must still be present in such a case.

As the Solicitor General has pointed out:

There are several instances when a warrantless search and seizure can be effected without
necessarily being preceded by an arrest provided the same is effected on the basis of

335
 probable cause (e.g. stop and search without warrant at checkpoints). Between warrantless
searches and seizures at checkpoints and in the case at bar the latter is more reasonable
considering that unlike in the former, it was effected on the basis of probable cause. Under
the circumstances (monitoring of transactions) there existed probable cause for the arresting
officers, to arrest appellant who was in fact selling marijuana and to seize the contraband.

That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon,
Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search
incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which
provides that a person lawfully arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search warrant. (People v.
Castiller, G.R. No. 87783, August 6, 1990)

The accused-appellant claims that the arrest having been done without warrant, it follows that the
evidence obtained therefrom is inadmissible.

As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the
requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible
in evidence.

Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for
testifying could be merely to escape prosecution.

We quote the trial court's finding as to the testimony of Macabante:

The non-filing of a complaint against him for possession of marijuana may have been the
reason of (sic) his willingness to testify in court against the accused. But this does not
necessarily taint the evidence that proceeds from his lips. As explained by Lt. Seraspi, the
best sources of information against drug pushers are usually their customers, especially if as
in this case, there is no other direct evidence of the selling except the testimony of the buyer.
We accept this observation as a realistic appraisal of a situation in which drug users are, and
should be employed by law enforcement authorities to bolster the drive against pushers who
are the real felons in our society. We have observed the demeanor of the witness in court,
and found him to be straightforward, unhesitating, and spontaneous in his declarations, so
that we are satisfied as to his intention and disposition to tell the truth (Rollo, p. 40)

Time and again it has been held that the findings of the trial court are entitled to great weight and
should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts
of weight and importance, it being acknowledged. that the court below, having seen and heard the
witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al.,
G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v.
Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]).

Furthermore, the testimony of Macabante was corroborated on material points by public officers
Fulgencio and Seraspi.

There is nothing in the record to suggest that the police officers were compelled by any motive than
to accomplish their mission to capture a drug pusher in the execution of the crime, the presumption
being that police officers perform their duties regularly in the absence of any evidence to the contrary
(Rule 131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v.
Natipravat, 145 SCRA 483 [1986]).

336
The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the
items seized were all positive for marijuana.

In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which
is unavailing considering that he was positively identified by Macabante to be the person from whom
he bought marijuana.

Sucro alleges that he could not have committed the crime since he was with his uncle and cousin
distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude
the possibility that he was present in the vicinity as established by his admission that he moved a lot
and even had the occasion to meet Macabante on the street.

It is well-settled that mere denials cannot prevail against the positive identification of the appellant as
the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco,
170 SCRA 681 [1989])

Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the
offense charged. The trial court's decision must be upheld.

WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,

vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon
Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra
St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars
nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his
car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was
able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of
the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber
pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa
Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had
come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and
he positively identified him as the same person who had shot Maguan. Having established that the
assailant was probably the petitioner, the police launched a manhunt for petitioner.

337
On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news
reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police
forthwith detained him. An eyewitness to the shooting, who was at the police station at that time,
positively identified petitioner as the gunman. That same day, the police promptly filed a complaint
for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First
Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the
presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he
must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused
to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be
filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide,
filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the
bottom of the information, the Prosecutor certified that no preliminary investigation had been
conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of
the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an
omnibus motion for immediate release and proper preliminary investigation,4 alleging that the
warrantless arrest of petitioner was unlawful and that no preliminary investigation had been
conducted before the information was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote
on the last page of the motion itself that he interposed no objection to petitioner being granted
provisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite
action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent
Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his
release. 7 Petitioner was in fact released that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation8 and prayed that in the meantime all proceedings in the court be
suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal
an omnibus motion for immediate release and preliminary investigation, which motion had been
granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of
P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion
of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary
investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall
have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the
following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours
from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the
prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus
motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a
petition for bail and set for hearing on 23 July 1991.

338
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the
Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void
because no preliminary investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case pending resolution by
the Supreme Court of his petition; this motion was, however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition
and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden
of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner
was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea
of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view
of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition
for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon
the other, were subsequently consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to
restrain his arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first
witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two
(2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been
established through investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his
arrest. He waived his right to preliminary investigation by not invoking it properly and
seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes so
as to make them conformable to law and justice.

339
 d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial Warden),
the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the
Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal
case below until further orders from this Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a
lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and
second, whether petitioner had effectively waived his right to preliminary investigation. We consider
these issues seriatim.

In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner
had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot
Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly
arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the
Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court
upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in
connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General,
the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner
had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was
legally justified in filing the information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he
went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus,
petitioner argues, the crime had not been "just committed" at the time that he was arrested.
Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a
warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary investigation, could
not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances
of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of
the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission
of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses
were subversion, membership in an outlawed organization like the New People's Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an offense which was
obviously commenced and completed at one definite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which
provides as follows:

340
 Sec. 5 Arrest without warrant; when lawful. — A peace officer or a private person
may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceed against in accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in fact just been committed" within the meaning of
Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts
indicating that petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the shooting —
one stated that petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)

341
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan
Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the
police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the
implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to determine whether there was probable
cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and
required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition
for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to
be released forthwith subject only to his appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed out, on the same day that the information for murder
was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner
should accordingly be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a
slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional
Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul, 19 this Court held:

The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists to warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action.While it is true that the fiscal has the quasi-
judicial discretion to determine whether or not a criminal case should be filed in court
or not, once the case had already been brought to Court whatever disposition the
fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused., or the right of the People to due
process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case [such] as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best
and sole judge on what to do with the case before it. . . . 20 (Citations omitted;
emphasis supplied)

342
 Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation
and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the
Prosecutor himself did file with the trial court, on the 5th day after filing the information for
murder, a motion for leave to conduct preliminary investigation (attaching to his motion a
copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later apprised of the desire
of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the
(mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be
held to have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While
that right is statutory rather than constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at
risk of incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process
painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him the full measure of his right to due
process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in
the instant case considering that he was already arraigned on 23 August 1991. The rule is that the
right to preliminary investigation is waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment. 22 In the instant case, petitioner Go had vigorously insisted on his
right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner
was already before the Court of Appeals on certiorari, prohibition and mandamusprecisely asking for
a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived
his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had
waived their right to preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary
investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and
for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation
on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to
preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary
investigation, while constituting a denial of the appropriate and full measure of the statutory process
of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of
the trial court. 25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail.
This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt

343
then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent
Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-
eight (48) hours from notice, was plainly arbitrary considering that no evidence at all — and certainly
no new or additional evidence — had been submitted to respondent Judge that could have justified
the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.

The final question which the Court must face is this: how does the fact that, in the instant case, trial
on the merits has already commenced, the Prosecutor having already presented four (4) witnesses,
impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to
be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to
a preliminary investigation although trial on the merits has already began. Trial on the merits should
be suspended or held in abeyance and a preliminary investigation forthwith accorded to
petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have
on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably
could reach the conclusion that the evidence on hand does not warrant a finding of probable cause.
In any event, the constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed
to trial without preliminary investigation, with extraordinary haste, to the applause from the audience
that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and
screaming," in a manner of speaking . During the proceedings held before the trial court on 23
August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made
very clear petitioner's vigorous protest and objection to the arraignment precisely because of the
denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's
protests and objections that an obviously angered court and prosecutor dared him to withdraw or
walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution
called its first witness, petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation: petitioner's counsel made of record his "continuing
objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to
challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his
detention.30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it
was because he was extremely loath to be represented by counsel de oficio selected by the trial
judge, and to run the risk of being held to have waived also his right to use what is frequently the
only test of truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record concerning petitioner's
guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to permit the Government to benefit
from its own wrong or culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial
exercise. But the Court is not compelled to speculate. And, in any case, it would not
be idleceremony; rather, it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those rights and liberties.

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ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of
the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits
of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of
One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful
order that the trial court may issue, should the Office of the Provincial Prosecutor move for
cancellation of bail at the conclusion of the preliminary investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

G.R. No. 89139 August 2, 1990

ROMEO POSADAS y ZAMORA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

Rudy G. Agravate for petitioner.

GANCAYCO, J.:

The validity of a warrantless search on the person of petitioner is put into issue in this case.

On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra
Umpar, both members of the Integrated National Police (INP) of the Davao Metrodiscom assigned
with the Intelligence Task Force, were conducting a surveillance along Magallanes Street, Davao
City. While they were within the premises of the Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be acting suspiciously.

They approached the petitioner and identified themselves as members of the INP. Petitioner
attempted to flee but his attempt to get away was thwarted by the two notwithstanding his
resistance.

They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith &
Wesson revolver with Serial No. 770196 1 two (2) rounds of live ammunition for a .38 caliber gun 2 a
smoke (tear gas) grenade,3 and two (2) live ammunitions for a .22 caliber gun. 4 They brought the
petitioner to the police station for further investigation. In the course of the same, the petitioner was
asked to show the necessary license or authority to possess firearms and ammunitions found in his
possession but he failed to do so. He was then taken to the Davao Metrodiscom office and the
prohibited articles recovered from him were indorsed to M/Sgt. Didoy the officer then on duty. He

345
was prosecuted for illegal possession of firearms and ammunitions in the Regional Trial Court of
Davao City wherein after a plea of not guilty and trial on the merits a decision was rendered on
October 8, 1987 finding petitioner guilty of the offense charged as follows:

WHEREFORE, in view of all the foregoing, this Court , finds the accused guilty
beyond reasonable doubt of the offense charged.

It appearing that the accuse d was below eighteen (18) years old at the time of the
commission of the offense (Art. 68, par. 2), he is hereby sentenced to an
indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision
mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11) days of Reclusion
Temporal, and to pay the costs.

The firearm, ammunitions and smoke grenade are forfeited in favor of the
government and the Branch Clerk of Court is hereby directed to turn over said items
to the Chief, Davao Metrodiscom, Davao City. 5

Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due
course a decision was rendered on February 23, 1989 affirming in toto the appealed decision with
costs against the petitioner. 6

Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest or
search and seizure, the items which were confiscated from the possession of the petitioner are
inadmissible in evidence against him.

The Solicitor General, in justifying the warrantless search of the buri bag then carried by the
petitioner, argues that under Section 12, Rule 136 of the Rules of Court a person lawfully arrested
may be searched for dangerous weapons or anything used as proof of a commission of an offense
without a search warrant. It is further alleged that the arrest without a warrant of the petitioner was
lawful under the circumstances.

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:

SEC. 5. Arrest without warrant; when lawful — A peace officer or a private person
may, without a warrant, arrest a person:

(a) When in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 112, Section 7. (6a, 17a)

346
From the foregoing provision of law it is clear that an arrest without a warrant may be effected by a
peace officer or private person, among others, when in his presence the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; or when an offense has in
fact just been committed, and he has personal knowledge of the facts indicating that the person
arrested has committed it.

The Solicitor General argues that when the two policemen approached the petitioner, he was
actually committing or had just committed the offense of illegal possession of firearms and
ammunitions in the presence of the police officers and consequently the search and seizure of the
contraband was incidental to the lawful arrest in accordance with Section 12, Rule 126 of the 1985
Rules on Criminal Procedure. We disagree.

At the time the peace officers in this case 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 firearms and ammunitions. They just suspected that he was hiding
something in the buri bag. They did now know what its contents were. The said circumstances did
not justify an arrest without a warrant.

However, there are many instances where a warrant and seizure can be effected without necessarily
being preceded by an arrest, foremost of which is the "stop and search" without a search warrant at
military or police checkpoints, the constitutionality or validity of which has been upheld by this Court
in Valmonte vs. de Villa, 7 as follows:

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 light 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.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds, or simply looks into a vehicle or flashes a
light therein, 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 however reasonably conducted, the former
should prevail.

347
 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. (Emphasis supplied).

Thus, as between a warrantless search and seizure conducted at military or police checkpoints and
the search thereat in the case at bar, there is no question that, indeed, the latter is more reasonable
considering that unlike in the former, it was effected on the basis of a probable cause. The probable
cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag there
was a probable cause that he was concealing something illegal in the bag and it was the right and
duty of the police officers to inspect the same.

It is too much indeed to require the police officers to search the bag in the possession of the
petitioner only after they shall have obtained a search warrant for the purpose. Such an exercise
may prove to be useless, futile and much too late.

In People vs. CFI of Rizal, 8 this Court held as follows:

. . . In the ordinary cases where warrant is indispensably necessary, the mechanics

prescribed by the Constitution and reiterated in the Rules of Court must be followed
and satisfied. But We need not argue that there are exceptions. Thus in the
extraordinary events where warrant is not necessary to effect a valid search or
seizure, or when the latter cannot be performed except without warrant, what
constitutes a reasonable or unreasonable search or seizure becomes purely a
judicial question, determinable from the uniqueness of the circumstances involved,
including the purpose of the search or seizure, the presence or absence of probable
cause, the manner in which the search and seizure was made, the place or thing
searched and the character of the articles procured.

The Court reproduces with approval the following disquisition of the Solicitor General:

The assailed search and seizure may still be justified as akin to a "stop and frisk"
situation whose object is either to determine the identity of a suspicious individual or
to maintain the status quo momentarily while the police officer seeks to obtain more
information. This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1 (1968). In this
case, two men repeatedly walked past a store window and returned to a spot where
they apparently conferred with a third man. This aroused the suspicion of a police
officer. To the experienced officer, the behaviour of the men indicated that they were
sizing up the store for an armed robbery. When the police officer approached the
men and asked them for their names, they mumbled a reply. Whereupon, the officer
grabbed one of them, spun him around and frisked him. Finding a concealed weapon
in one, he did the same to the other two and found another weapon. In the
prosecution for the offense of carrying a concealed weapon, the defense of illegal
search and seizure was put up. The United States Supreme Court held that "a police
officer may in appropriate circumstances and in an appropriate manner approach a
person for the purpose of investigating possible criminal behaviour even though there
is no probable cause to make an arrest." In such a situation, it is reasonable for an
officer rather than simply to shrug his shoulder and allow a crime to occur, to stop a
suspicious individual briefly in order to determine his identity or maintain thestatus
quo while obtaining more information. . . .

348
Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed,
and hence, the constitutional guarantee against unreasonable searches and seizures has not been
violated. 9

WHEREFORE, the petition is DENIED with costs against petitioner.

G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.:

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength
mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this
appeal, he pleads that the weapon was not admissible as evidence against him because it had been
illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It
insists that the revolver was validly received in evidence by the trial judge because its seizure was
incidental to an arrest that was doubtless lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police District
received a telephone call from an informer that there were three suspicious-looking persons at the
corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of
plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen
Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of
whom was holding his abdomen. They approached these persons and identified themselves as
policemen, whereupon the two tried to run away but were unable to escape because the other
lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be
the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets
in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his
front right pants pocket. The weapons were taken from them. Mengote and Morellos were then
turned over to police headquarters for investigation by the Intelligence Division.

On August 11, 1987, the following information was filed against the accused-appellant before the
Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of

Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and knowingly have in his possession and
under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearing

Serial No. 8720-T

without first having secured the necessary license or permit therefor from the proper
authorities.

349
Besides the police officers, one other witness presented by the prosecution was Rigoberto
Danganan, who identified the subject weapon as among the articles stolen from him during the
robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He
had duly reported the robbery to the police, indicating the articles stolen from him, including the
revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of
his arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and
admitted over the objection of the defense. As previously stated, the weapon was the principal
evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion
perpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence
because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it
have been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful,
having been also effected without a warrant. The defense also contends that the testimony regarding
the alleged robbery in Danganan's house was irrelevant and should also have been disregarded by
the trial court.

The following are the pertinent provision of the Bill of Rights:

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 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. 3 (1). The privacy of communication and correspondence shall be inviolable

except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible
in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the
Constitution. This is the celebrated exclusionary rule based on the justification given by Judge
Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that
it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding
the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search
of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the
Rules of Court reading as follows:

Sec. 5. Arrest without warrant when lawful. — A peace officer or private person may,
without a warrant, arrest a person;

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

350
 (b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases failing under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 112, Section 7.

We have carefully examined the wording of this Rule and cannot see how we can agree with the
prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal
institution when he was arrested. We therefore confine ourselves to determining the lawfulness of
his arrest under either Par. (a) or Par. (b) of this section.

Par. (a) requires that the person be arrested (1) after he has committed or while he is actually
committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in
question, the accused-appellant was merely "looking from side to side" and "holding his abdomen,"
according to the arresting officers themselves. There was apparently no offense that had just been
committed or was being actually committed or at least being attempted by Mengote in their
presence.

The Solicitor General submits that the actual existence of an offense was not necessary as long as
Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in
them the belief that an offense had been committed and that the accused-appellant had committed
it." The question is, What offense? What offense could possibly have been suggested by a person
"looking from side to side" and "holding his abdomen" and in a place not exactly forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might
have been different if Mengote bad been apprehended at an ungodly hour and in a place where he
had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30
in the morning and in a crowded street shortly after alighting from a passenger jeep with I his
companion. He was not skulking in the shadows but walking in the clear light of day. There was
nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them innocent, why his eyes
were darting from side to side and be was holding his abdomen. If they excited suspicion in the
minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown
what their suspicion was all about. In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from the informer that there were
"suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay
Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate
on the impending crime.

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the
accused because there was a bulge in his waist that excited the suspicion of the arresting officer

351
and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the
accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting
officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously
examined the bag, which he found to contain marijuana. He then and there made the warrantless
arrest and seizure that we subsequently upheld on the ground that probable cause had been
sufficiently established.

The case before us is different because there was nothing to support the arresting officers' suspicion
other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination
could it have been inferred from these acts that an offense had just been committed, or was actually
being committed, or was at least being attempted in their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the
accused was unconstitutional. This was effected while be was coming down a vessel, to all
appearances no less innocent than the other disembarking passengers. He had not committed nor
was be actually committing or attempting to commit an offense in the presence of the arresting
officers. He was not even acting suspiciously. In short, there was no probable cause that, as the
prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied.
The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been
committed and that the arresting officers had personal knowledge of facts indicating that Mengote
had committed it. All they had was hearsay information from the telephone caller, and about a crime
that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and neither were
they aware of the participation therein of the accused-appellant. It was only later, after Danganan
had appeared at the Police headquarters, that they learned of the robbery in his house and of
Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the
policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor
was he licensed to possess it.

Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the
fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of
Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have personal
knowledge of the fact. The offense must also be committed in his presence or within
his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

xxx xxx xxx

In arrests without a warrant under Section 6(b), however, it is not enough that there
is reasonable ground to believe that the person to be arrested has committed a
crime. A crime must in fact or actually have been committed first. That a crime has
actually been committed is an essential precondition. It is not enough to suspect that
a crime may have been committed. The fact of the commission of the offense must
be undisputed. The test of reasonable ground applies only to the identity of the
perpetrator. (Emphasis supplied)

352
This doctrine was affirmed in Alih v. Castro, 10 thus:

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 falsification. 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. (Emphasis supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched just because
he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer
could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a
criminal act or is actually committing or attempting it. This simply cannot be done in a free society.
This is not a police state where order is exalted over liberty or, worse, personal malice on the part of
the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here
make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at
the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore
fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient
to prove his guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant
not only in the brief but also in the reply brief, which she did not have to file but did so just the same
to stress the constitutional rights of her client. The fact that she was acting only as a counsel de
oficio with no expectation of material reward makes her representation even more commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the Bill of
Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they
allowed their over-zealousness to get the better of them, resulting in their disregard of the
requirements of a valid search and seizure that rendered inadmissible the vital evidence they had
invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the
acquittal of persons who deserve to be convicted, escaping the clutches of the law because,
ironically enough, it has not been observed by those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is
ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No
costs.

SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS,

and PEOPLE OF THE PHILIPPINES, respondents.

DECISION
DAVIDE, JR., J.:

In an Information filed on 30 August 1990, in Criminal Case No. 90-86748

[1]

before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy

353
Malacat y Mandar was charged with violating Section 3 of Presidential Decree
No. 1866, as follows:
[2]

That on or about August 27, 1990, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a
hand grenade, without first securing the necessary license and/or permit therefor from
the proper authorities.

At arraignment on 9 October 1990, petitioner, assisted by counsel de

[3]

oficio, entered a plea of not guilty.

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits
A, A-1, and A-2, while the prosecution admitted that the police authorities were
[4]

not armed with a search warrant nor warrant of arrest at the time they arrested
petitioner.
[5]

At trial on the merits, the prosecution presented the following police officers
as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the
investigating officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the
Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that
on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported
seven days earlier, he was on foot patrol with three other police officers (all of
them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury
Drug store at Plaza Miranda.They chanced upon two groups of Muslim-looking
men, with each group, comprised of three to four men, posted at opposite sides
of the corner of Quezon Boulevard near the Mercury Drug Store. These men
were acting suspiciously with [t]heir eyes moving very fast. [6]

Yu and his companions positioned themselves at strategic points and

observed both groups for about thirty minutes. The police officers then
approached one group of men, who then fled in different directions. As the
policemen gave chase, Yu caught up with and apprehended petitioner. Upon
searching petitioner, Yu found a fragmentation grenade tucked inside
petitioners front waist line. Yus companion, police officer Rogelio Malibiran,
[7]

apprehended Abdul Casan from whom a .38 caliber revolver was

recovered. Petitioner and Casan were then brought to Police Station No. 3
where Yu placed an X mark at the bottom of the grenade and thereafter gave it
to his commander. [8]

On cross-examination, Yu declared that they conducted the foot patrol due

to a report that a group of Muslims was going to explode a grenade somewhere
in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous

354
Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2
others attempt to detonate a grenade. The attempt was aborted when Yu and
other policemen chased petitioner and his companions; however, the former
were unable to catch any of the latter. Yu further admitted that petitioner and
Casan were merely standing on the corner of Quezon Boulevard when Yu saw
them on 27 August 1990. Although they were not creating a commotion, since
they were supposedly acting suspiciously, Yu and his companions approached
them. Yu did not issue any receipt for the grenade he allegedly recovered from
petitioner.
[9]

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990,

petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla for [10]

investigation. Forthwith, Serapio conducted the inquest of the two suspects,

informing them of their rights to remain silent and to be assisted by competent
and independent counsel. Despite Serapios advice, petitioner and Casan
manifested their willingness to answer questions even without the assistance
of a lawyer. Serapio then took petitioners uncounselled confession (Exh. E),
there being no PAO lawyer available, wherein petitioner admitted possession
of the grenade.Thereafter, Serapio prepared the affidavit of arrest and booking
sheet of petitioner and Casan. Later, Serapio turned over the grenade to the
Intelligence and Special Action Division (ISAD) of the Explosive Ordnance
Disposal Unit for examination. [11]

On cross-examination, Serapio admitted that he took petitioners confession

knowing it was inadmissible in evidence. [12]

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal

duties included, among other things, the examination of explosive devices,
testified that on 22 March 1991, he received a request dated 19 March 1991
from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a
grenade. Ramilo then affixed an orange tag on the subject grenade detailing
his name, the date and time he received the specimen. During the preliminary
examination of the grenade, he [f]ound that [the] major components consisting
of [a] high filler and fuse assembly [were] all present, and concluded that the
grenade was [l]ive and capable of exploding. On even date, he issued a
certification stating his findings, a copy of which he forwarded to Diotoy on 11
August 1991. [13]

Petitioner was the lone defense witness. He declared that he arrived in

Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At
around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to
catch a breath of fresh air. Shortly after, several policemen arrived and ordered
all males to stand aside. The policemen searched petitioner and two other men,

355
but found nothing in their possession. However, he was arrested with two
others, brought to and detained at Precinct No. 3, where he was accused of
having shot a police officer. The officer showed the gunshot wounds he
allegedly sustained and shouted at petitioner [i]to ang tama mo sa akin. This
officer then inserted the muzzle of his gun into petitioners mouth and said, [y]ou
are the one who shot me. Petitioner denied the charges and explained that he
only recently arrived in Manila. However, several other police officers mauled
him, hitting him with benches and guns. Petitioner was once again searched,
but nothing was found on him. He saw the grenade only in court when it was
presented. [14]

The trial court ruled that the warrantless search and seizure of petitioner
was akin to a stop and frisk, where a warrant and seizure can be effected
without necessarily being preceded by an arrest and whose object is either to
maintain the status quo momentarily while the police officer seeks to obtain
more information. Probable cause was not required as it was not certain that
[15]

a crime had been committed, however, the situation called for an investigation,
hence to require probable cause would have been premature. The RTC [16]

emphasized that Yu and his companions were [c]onfronted with an emergency,

in which the delay necessary to obtain a warrant, threatens the destruction of
evidence and the officers [h]ad to act in haste, as petitioner and his
[17]

companions were acting suspiciously, considering the time, place and reported
cases of bombing. Further, petitioners group suddenly ran away in different
directions as they saw the arresting officers approach, thus [i]t is reasonable for
an officer to conduct a limited search, the purpose of which is not necessarily
to discover evidence of a crime, but to allow the officer to pursue his
investigation without fear of violence. [18]

The trial court then ruled that the seizure of the grenade from petitioner was
incidental to a lawful arrest, and since petitioner [l]ater voluntarily admitted such
fact to the police investigator for the purpose of bombing the Mercury Drug
Store, concluded that sufficient evidence existed to establish petitioners guilt
beyond reasonable doubt.
In its decision dated 10 February 1994 but promulgated on 15 February
[19]

1994, the trial court thus found petitioner guilty of the crime of illegal possession
of explosives under Section 3 of P.D. No. 1866, and sentenced him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS
AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than
THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

356
 On 18 February 1994, petitioner filed a notice of appeal indicating that he
[20]

was appealing to this Court. However, the record of the case was forwarded to
the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued
a notice to file briefs.
[21]

In his Appellants Brief [22]

filed with the Court of Appeals, petitioner asserted
that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE
PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS
ARREST.
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-
APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS
A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to
absence of any of the conditions provided for in Section 5 of Rule 113 of the
Rules of Court, citing People vs. Mengote. As such, the search was illegal,
[23]

and the hand grenade seized, inadmissible in evidence.

In its Brief for the Appellee, the Office of the Solicitor General agreed with
the trial court and prayed that its decision be affirmed in toto. [24]

In its decision of 24 January 1996, the Court of Appeals affirmed the trial
[25]

court, noting, first, that petitioner abandoned his original theory before the court
a quo that the grenade was planted by the police officers; and second, the
factual finding of the trial court that the grenade was seized from petitioners
possession was not raised as an issue. Further, respondent court focused on
the admissibility in evidence of Exhibit D, the hand grenade seized from
petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest
was lawful on the ground that there was probable cause for the arrest as
petitioner was attempting to commit an offense, thus:

We are at a loss to understand how a man, who was in possession of a live grenade
and in the company of other suspicious character[s] with unlicensed firearm[s] lurking
in Plaza Miranda at a time when political tension ha[d] been enkindling a series of
terroristic activities, [can] claim that he was not attempting to commit an offense. We
need not mention that Plaza Miranda is historically notorious for being a favorite
bomb site especially during times of political upheaval. As the mere possession of an
unlicensed grenade is by itself an offense, Malacats posture is simply too preposterous
to inspire belief.

In so doing, the Court of Appeals took into account petitioners failure to

rebut the testimony of the prosecution witnesses that they received intelligence

357
reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner
two days prior to the latters arrest, or on 27 August 1990; and that petitioner
and his companions acted suspiciously, the accumulation of which was more
than sufficient to convince a reasonable man that an offense was about to be
committed. Moreover, the Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait
for Malacat to hurl the grenade, and kill several innocent persons while maiming
numerous others, before arriving at what would then be an assured but moot
conclusion that there was indeed probable cause for an arrest. We are in agreement
with the lower court in saying that the probable cause in such a situation should not be
the kind of proof necessary to convict, but rather the practical considerations of
everyday life on which a reasonable and prudent mind, and not legal technicians, will
ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v.
Mengote, which petitioner relied upon, was inapplicable in light of [c]rucial
[26]

differences, to wit:

[In Mengote] the police officers never received any intelligence report that someone
[at] the corner of a busy street [would] be in possession of a prohibited article. Here
the police officers were responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after receiving intelligence
reports about a bomb threat aimed at the vicinity of the historically notorious Plaza
Miranda, they conducted foot patrols for about seven days to observe suspicious
movements in the area. Furthermore, in Mengote, the police officers [had] no personal
knowledge that the person arrested has committed, is actually committing, or is
attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact
that he chased Malacat in Plaza Miranda two days before he finally succeeded in
apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition
and assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL
COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND
LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE
VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.

In support thereof, petitioner merely restates his arguments below regarding the
validity of the warrantless arrest and search, then disagrees with the finding of

358
the Court of Appeals that he was attempting to commit a crime, as the evidence
for the prosecution merely disclosed that he was standing at the corner of Plaza
Miranda and Quezon Boulevard with his eyes moving very fast and looking at
every person that come (sic) nearer (sic) to them. Finally, petitioner points out
the factual similarities between his case and that of People v. Mengote to
demonstrate that the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision.
For being impressed with merit, we resolved to give due course to the
petition.
The challenged decision must immediately fall on jurisdictional grounds. To
repeat, the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY
(30) YEARS OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall
unlawfully possess grenades is reclusion temporal in its maximum period
to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the
maximum of the penalty, and not the minimum, is taken into account. Since the
maximum of the penalty is reclusion perpetua, the appeal therefrom should
have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the
Judiciary Reorganization Act of 1980 (B.P. Blg. 129), in relation to Section 17
[27]

of the Judiciary Act of 1948, Section 5(2) of Article VIII of the Constitution and
[28] [29]

Section 3(c) of Rule 122 of the Rules of Court. The term life imprisonment as
[30]

used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of
Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2)
of Article VIII of the Constitution.
Petitioners Notice of Appeal indicated that he was appealing from the trial
courts decision to this Court, yet the trial court transmitted the record to the
Court of Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been
rendered without jurisdiction, and consider the appeal as having been directly
brought to us, with the petition for review as petitioners Brief for the Appellant,
the comment thereon by the Office of the Solicitor General as the Brief for the
Appellee and the memoranda of the parties as their Supplemental Briefs.

359
 Deliberating on the foregoing pleadings, we find ourselves convinced that
the prosecution failed to establish petitioners guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade
was found in and seized from petitioners possession. Notably, Yu did not
identify, in court, the grenade he allegedly seized.According to him, he turned
it over to his commander after putting an X mark at its bottom; however, the
commander was not presented to corroborate this claim. On the other hand, the
grenade presented in court and identified by police officer Ramilo referred to
what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not
immediately after petitioners arrest, but nearly seven (7) months later, or on 19
March 1991; further, there was no evidence whatsoever that what Ramilo
received was the very same grenade seized from petitioner. In his testimony,
Yu never declared that the grenade passed on to Ramilo was the grenade the
former confiscated from petitioner. Yu did not, and was not made to, identify the
grenade examined by Ramilo, and the latter did not claim that the grenade he
examined was that seized from petitioner. Plainly, the law enforcement
authorities failed to safeguard and preserve the chain of evidence so crucial in
cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days
earlier he was with a group about to detonate an explosive at Plaza Miranda,
and Yu and his fellow officers chased, but failed to arrest them, then considering
that Yu and his three fellow officers were in uniform and therefore easily
cognizable as police officers, it was then unnatural and against common
experience that petitioner simply stood there in proximity to the police
officers. Note that Yu observed petitioner for thirty minutes and must have been
close enough to petitioner in order to discern petitioners eyes moving very fast.
Finally, even assuming that petitioner admitted possession of the grenade
during his custodial investigation by police officer Serapio, such admission was
inadmissible in evidence for it was taken in palpable violation of Section 12(1)
and (3) of Article III of the Constitution, which provide as follows:

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.

xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.

360
Serapio conducted the custodial investigation on petitioner the day following his
arrest. No lawyer was present and Serapio could not have requested a lawyer
to assist petitioner as no PAO lawyer was then available. Thus, even if
petitioner consented to the investigation and waived his rights to remain silent
and to counsel, the waiver was invalid as it was not in writing, neither was it
executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the
arrest and search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant
is needed in order to validly effect the same. The Constitutional prohibition
[31]

against unreasonable arrests, searches and seizures refers to those effected

without a validly issued warrant, subject to certain exceptions. As regards
[32]

valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules
of Court, which reads, in part:

Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped ***
A warrantless arrest under the circumstances contemplated under Section 5(a)
has been denominated as one "in flagrante delicto," while that under Section
5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1)
customs searches; (2) search of moving vehicles; (3) seizure of evidence in
plain view; (4) consent searches; (5) a search incidental to a lawful
[33]

arrest; and (6) a "stop and frisk."

[34] [35]

In the instant petition, the trial court validated the warrantless search as a
stop and frisk with the seizure of the grenade from the accused [as] an
appropriate incident to his arrest, hence necessitating a brief discussion on the
nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-
and-frisk" and of a search incidental to a lawful arrest. These two types of
warrantless searches differ in terms of the requisite quantum of proof before
they may be validly effected and in their allowable scope.

361
 In a search incidental to a lawful arrest, as the precedent arrest determines
the validity of the incidental search, the legality of the arrest is questioned in a
large majority of these cases, e.g., whether an arrest was merely used as a
pretext for conducting a search. In this instance, the law requires that there
[36]

first be a lawful arrest before a search can be made -- the process cannot be
reversed. At bottom, assuming a valid arrest, the arresting officer may search
[37]

the person of the arrestee and the area within which the latter may reach for a
weapon or for evidence to destroy, and seize any money or property found
which was used in the commission of the crime, or the fruit of the crime, or that
which may be used as evidence, or which might furnish the arrestee with the
means of escaping or committing violence. [38]

Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of
Yu, the arresting officer, or an overt physical act, on the part of petitioner,
indicating that a crime had just been committed, was being committed or was
going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case,
plainly, the search conducted on petitioner could not have been one incidental
to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-
frisk" as a "limited protective search of outer clothing for weapons," as laid down
in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his reasonable fear
for his own or others' safety, he is entitled for the protection of himself and others
in the area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault
him. Such a search is a reasonable search under the Fourth Amendment *** [39]

Other notable points of Terry are that while probable cause is not required to
conduct a "stop and frisk," it nevertheless holds that mere suspicion or a
[40]

hunch will not validate a "stop and frisk." A genuine reason must exist, in light
of the police officer's experience and surrounding conditions, to warrant the
belief that the person detained has weapons concealed about him. Finally, a [41]

"stop-and-frisk" serves a two-fold interest: (1) the general interest of effective

362
crime prevention and detection, which underlies the recognition that a police
officer may, under appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing interest of safety and self-
preservation which permit the police officer to take steps to assure himself that
the person with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.
Here, here are at least three (3) reasons why the stop-and-frisk was invalid:
First, we harbor grave doubts as to Yus claim that petitioner was a member
of the group which attempted to bomb Plaza Miranda two days earlier. This
claim is neither supported by any police report or record nor corroborated by
any other police officer who allegedly chased that group. Aside from impairing
Yu's credibility as a witness, this likewise diminishes the probability that a
genuine reason existed so as to arrest and search petitioner. If only to further
tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and
his companions had to be chased before being apprehended, the affidavit of
arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other
police officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioners behavior or conduct which could
have reasonably elicited even mere suspicion other than that his eyes were
moving very fast an observation which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it was already 6:30 p.m., thus
presumably dusk. Petitioner and his companions were merely standing at the
corner and were not creating any commotion or trouble, as Yu explicitly
declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not create any
commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir.[42]

Third, there was at all no ground, probable or otherwise, to believe that

petitioner was armed with a deadly weapon. None was visible to Yu, for as he
admitted, the alleged grenade was discovered inside the front waistline of

363
petitioner, and from all indications as to the distance between Yu and petitioner,
any telltale bulge, assuming that petitioner was indeed hiding a grenade, could
not have been visible to Yu. In fact, as noted by the trial court:

When the policemen approached the accused and his companions, they were not yet
aware that a handgrenade was tucked inside his waistline. They did not see any
bulging object in [sic] his person. [43]

What is unequivocal then in this case are blatant violations of petitioners

rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the
Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the
Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction
on the part of said Court and, on ground of reasonable doubt, the decision of
10 February 1994 of Branch 5 of the Regional Trial Court of Manila is
REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby
ACQUITTED and ORDERED immediately released from detention, unless his
further detention is justified for any other lawful cause.
G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.:

The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally
transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a
fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at
about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply
accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their
headquarters for investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an
information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information
was amended to include Farida Ali y Hassen, who had also been arrested with him that same
evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the
fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the

364
arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial
proceeded only against the accused-appellant, who was eventually convicted .6

According to the prosecution, the PC officers had earlier received a tip from one of their informers
that the accused-appellant was on board a vessel bound for Iloilo City and was carrying
marijuana. 7 He was Identified by name. 8Acting on this tip, they waited for him in the evening of June
25, 1984, and approached him as he descended from the gangplank after the informer had pointed
to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three
kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10who testified
that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this
finding, the corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his
clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily
arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC
headquarters, he was manhandled to force him to admit he was carrying the marijuana, the
investigator hitting him with a piece of wood in the chest and arms even as he parried the blows
while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and
that his business was selling watches and sometimes cigarettes. 13 He also argued that the
marijuana he was alleged to have been carrying was not properly Identified and could have been
any of several bundles kept in the stock room of the PC headquarters. 14

The trial court was unconvinced, noting from its own examination of the accused that he claimed to
have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo
for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin
testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not
discovered when he was bodily searched by the arresting officers nor were they damaged as a
result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the
other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he
said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that
he had not sufficiently proved the injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who
had immediate access to the testimony of the witnesses and had the opportunity to weigh their
credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face
and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal
record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-
appellant was not really beaten up because he did not complain about it later nor did he submit to a
medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that
opportunity as he was at that time under detention by the PC authorities and in fact has never been
set free since he was arrested in 1984 and up to the present. No bail has been allowed for his
release.

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he
was arrested and searched without warrant, making the marijuana allegedly found in his possession
inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this
point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest
of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on
warrantless arrests. This made the search also valid as incidental to a lawful arrest.

365
It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that
they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only
justification was the tip they had earlier received from a reliable and regular informer who reported to
them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the
time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a
third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the
arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to the

coming of Idel Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable
sources.

Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?

A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we
have already reports of the particular operation which was being
participated by Idel Aminnudin.

Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.

Q Did you receive any other report aside from this intelligence report?

A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling operation.

COURT:

Q Previous to that particular information which you said two days

before June 25, 1984, did you also receive daily report regarding the
activities of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities of

Idel Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

366
A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot Identify the
person.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to Iloilo

with marijuana was received by you many days before you received
the intelligence report in writing?

A Not a report of the particular coming of Aminnudin but his activities.

Q You only knew that he was coming on June 25,1984 two days
before?

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that
minnudin was coming?

A Before June 23,1984, I, in my capacity, did not know that he was

coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his
activities, we have reports that he was already consummated the act
of selling and shipping marijuana stuff.

COURT:

Q And as a result of that report, you put him under surveillance?

A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was

mentioned?

A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

367
 Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?

A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search
of the subject mentioned in your intelligence report?

A No, more.

Q Why not?

A Because we were very very sure that our operation will yield
positive result.

Q Is that your procedure that whenever it will yield positive result you
do not need a search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the
PC. The Supreme Court cannot countenance such a statement. This is still a government of laws
and not of men.

The mandate of the Bill of Rights is clear:

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 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.

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal
determination by him of the existence of probable cause. Contrary to the averments of the
government, the accused-appellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the
Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant
as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject
to warrantless searches and seizures for violation of the customs law because these vehicles may
be quickly moved out of the locality or jurisdiction before the warrant can be secured.

The present case presented no such urgency. From the conflicting declarations of the PC witnesses,
it is clear that they had at least two days within which they could have obtained a warrant to arrest
and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The
vehicle was Identified. The date of its arrival was certain. And from the information they had
received, they could have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of

368
Rights was ignored altogether because the PC lieutenant who was the head of the arresting team,
had determined on his own authority that a "search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the
Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of
what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly
applicable because at the precise time of arrest the accused was in the act of selling the prohibited
drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for
his arrest. To all appearances, he was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his
arrest. The Identification by the informer was the probable cause as determined by the officers (and
not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteen years of the
despised dictatorship, when any one could be picked up at will, detained without charges and
punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to
return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights
guarantees.

While this is not to say that the accused-appellant is innocent, for indeed his very own words
suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional
presumption is that he is innocent, and he will be so declared even if his defense is weak as long as
the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution
must fall. That evidence cannot be admitted, and should never have been considered by the trial
court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree,
to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because
there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed
by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained
thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends
the efforts of our law-enforcement officers against those who would inflict this malediction upon our
people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual
in the realm, including the basest of criminals. The Constitution covers with the mantle of its
protection the innocent and the guilty alike against any manner of high- handedness from the
authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes,
again, said, "I think it a less evil that some criminals should escape than that the government should
play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another,
especially if the law violated is the Constitution itself.

369
We find that with the exclusion of the illegally seized marijuana as evidence against the accused-
appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be
discharged on the presumption that he is innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.

G.R. No. 91107 June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MIKAEL MALMSTEDT, *defendant-appellant.

The Solicitor General for plaintiff-appellee.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to

as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch
10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as
amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual
background of the case is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in
December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of
the following day, he took a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in
Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a
late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country,
scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and
Plate number AVC 902.1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province,
for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in
his possession prohibited drugs.2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set
up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all
vehicles coming from the Cordillera Region.

370
At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider
and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that
they would conduct an inspection. The two (2) NARCOM officers started their inspection from the
front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was
seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for accused's passport and other identification papers.
When accused failed to comply, the officer required him to bring out whatever it was that was
bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the
same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown
packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned
out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus,
accused stopped to get two (2) travelling bags from the luggage carrier.

Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in
each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which
did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally
presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad,
Benguet for further investigation. At the investigation room, the officers opened the teddy bears and
they were found to also contain hashish. Representative samples were taken from the hashish found
among the personal effects of accused and the same were brought to the PC Crime Laboratory for
chemical analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug
which is a derivative of marijuana. Thus, an information was filed against accused for violation of the
Dangerous Drugs Act.

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue
of illegal search of his personal effects. He also claimed that the hashish was planted by the
NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but
were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed
that the Australian couple intended to take the same bus with him but because there were no more
seats available in said bus, they decided to take the next ride and asked accused to take charge of
the bags, and that they would meet each other at the Dangwa Station.

Likewise, accused alleged that when the NARCOM officers demanded for his passport and other
Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck
containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn
handed it to his companion who brought the bag outside the bus. When said officer came back, he
charged the accused that there was hashish in the bag. He was told to get off the bus and his picture
was taken with the pouch bag placed around his neck. The trial court did not give credence to
accused's defense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his
failure to raise such defense at the earliest opportunity. When accused was investigated at the
Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by
the NARCOM officers in his bag. It was only two (2) months after said investigation when he told his

371
lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish
in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt
for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended.3 The
dispositive portion of the decision reads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of
Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary
imprisonment in case of insolvency and to pay the costs.

Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at
Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV
of Republic Act 6425, as amended.

SO ORDERED.4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused
argues that the search of his personal effects was illegal because it was made without a search
warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not
admissible as evidence against him.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures.5 However, where the search is made
pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a
warrant may be made by a peace officer or a private person under the following circumstances.6

Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed is actually committing, or
is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7. (6a 17a).

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was
actually being committed by the accused and he was caught in flagrante delicto. Thus, the search
made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law,
which allow a warrantless search incident to a lawful arrest.7

372
While it is true that the NARCOM officers were not armed with a search warrant when the search
was made over the personal effects of accused, however, under the circumstances of the case,
there was sufficient probable cause for said officers to believe that accused was then and there
committing a crime.

Probable cause has been defined as such facts and circumstances which could lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects
sought in connection with the offense are in the place sought to be searched.8 The required probable
cause that will justify a warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case.9

Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused,10 or where the accused was acting suspiciously,11 and attempted to flee.12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his
possession. Said information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there
was no time to obtain a search warrant. In the Tangliben case,13 the police authorities conducted a
surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga,
against persons engaged in the traffic of dangerous drugs, based on information supplied by some
informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was
apprehended and searched by the police authorities. It was held that when faced with on-the-spot
information, the police officers had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus
(where accused was riding) and the passengers therein, and no extensive search was initially made.
It was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has
nothing to hide from the authorities, to readily present his identification papers when required to do
so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs
in his possession, plus the suspicious failure of the accused to produce his passport, taken together
as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in
opening one of the wrapped objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed
inside them, were prompted by accused's own attempt to hide his identity by refusing to present his
passport, and by the information received by the NARCOM that a Caucasian coming from Sagada
had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to
act accordingly, including, to search even without warrant, in the light of such circumstances, would
be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

373
WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is
hereby AFFIRMED. Costs against the accused-appellant.

RODEL LUZ y ONG, G. R. No. 197788

Petitioner,

Present:

CARPIO, J., Chairperson,

- versus - BRION,
PEREZ,
SERENO, and
REYES, JJ.

PEOPLE OF THE Promulgated:

[1]
PHILIPPINES,
Respondent. February 29, 2012
x--------------------------------------------------x

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside
the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February
2011[2] and Resolution dated 8 July 2011.

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the
version of the prosecution, are as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of

the Naga City Police Station as a traffic enforcer, substantially testified that on
March 10, 2003 at around 3:00 oclock in the morning, he saw the accused, who was
coming from the direction of Panganiban Drive and going to Diversion Road, Naga
City, driving a motorcycle without a helmet; that this prompted him to flag down
the accused for violating a municipal ordinance which requires all motorcycle
drivers to wear helmet (sic) while driving said motor vehicle; that he invited the
374
 accused to come inside their sub-station since the place where he flagged down the
accused is almost in front of the said sub-station; that while he and SPO1 Rayford
Brillante were issuing a citation ticket for violation of municipal ordinance, he
noticed that the accused was uneasy and kept on getting something from his jacket;
that he was alerted and so, he told the accused to take out the contents of the pocket
of his jacket as the latter may have a weapon inside it; that the accused obliged and
slowly put out the contents of the pocket of his jacket which was a nickel-like tin
or metal container about two (2) to three (3) inches in size, including two (2)
cellphones, one (1) pair of scissors and one (1) Swiss knife; that upon seeing the
said container, he asked the accused to open it; that after the accused opened the
container, he noticed a cartoon cover and something beneath it; and that upon his
instruction, the accused spilled out the contents of the container on the table which
turned out to be four (4) plastic sachets, the two (2) of which were empty while the
other two (2) contained suspected shabu.[3]

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of

Not guilty to the charge of illegal possession of dangerous drugs. Pretrial was
terminated on 24 September 2003, after which, trial ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist
testified for the prosecution. On the other hand, petitioner testified for himself and
raised the defense of planting of evidence and extortion.

In its 19 February 2009 Decision,[4] the RTC convicted petitioner of illegal

possession of dangerous drugs[5] committed on 10 March 2003. It found the
prosecution evidence sufficient to show that he had been lawfully arrested for a
traffic violation and then subjected to a valid search, which led to the discovery on
his person of two plastic sachets later found to contain shabu. The RTC also found
his defense of frame-up and extortion to be weak, self-serving and unsubstantiated.
The dispositive portion of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL

LUZ y ONG GUILTY beyond reasonable doubt for the crime of violation of
Section 11, Article II of Republic Act No. 9165 and sentencing him to suffer the
indeterminate penalty of imprisonment ranging from twelve (12) years and (1) day,
as minimum, to thirteen (13) years, as maximum, and to pay a fine of Three
Hundred Thousand Pesos (₱300,000.00).

The subject shabu is hereby confiscated for turn over to the Philippine Drug
Enforcement Agency for its proper disposition and destruction in accordance with
law.

375
 SO ORDERED.[6]

Upon review, the CA affirmed the RTCs Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant Petition for
Review on Certiorari dated 1 September 2011. In a Resolution dated 12 October
2011, this Court required respondent to file a comment on the Petition. On 4 January
2012, the latter filed its Comment dated 3 January 2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT

SHABU IS INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE

PERFORMANCE OF DUTY OF THE POLICE OFFICER CANNOT
BE RELIED UPON IN THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE

ALLEGED SUBJECT SPECIMEN HAS BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT

PROVEN BEYOND THE REASONABLE DOUBT (sic).[7]

Petitioner claims that there was no lawful search and seizure, because there was no
lawful arrest. He claims that the finding that there was a lawful arrest was erroneous,
since he was not even issued a citation ticket or charged with violation of the city
ordinance. Even assuming there was a valid arrest, he claims that he had never
consented to the search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested, the RTC held
thus:

It is beyond dispute that the accused was flagged down and apprehended in this
case by Police Officers Alteza and Brillante for violation of City Ordinance No. 98-
012, an ordinance requiring the use of crash helmet by motorcycle drivers and riders
thereon in the City of Naga and prescribing penalties for violation thereof. The
accused himself admitted that he was not wearing a helmet at the time when he was
flagged down by the said police officers, albeit he had a helmet in his
possession. Obviously, there is legal basis on the part of the apprehending officers
to flag down and arrest the accused because the latter was actually committing a

376
 crime in their presence, that is, a violation of City Ordinance No. 98-012. In other
words, the accused, being caught in flagrante delicto violating the said Ordinance,
he could therefore be lawfully stopped or arrested by the apprehending officers. x
x x.[8]

We find the Petition to be impressed with merit, but not for the particular reasons
alleged. In criminal cases, an appeal throws the entire case wide open for review and
the reviewing tribunal can correct errors, though unassigned in the appealed
judgment, or even reverse the trial courts decision based on grounds other than those
that the parties raised as errors.[9]

First, there was no valid arrest of petitioner. When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this reason,
arrested.

Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense.[10] It is effected by an actual
restraint of the person to be arrested or by that persons voluntary submission to the
custody of the one making the arrest. Neither the application of actual force, manual
touching of the body, or physical restraint, nor a formal declaration of arrest, is
required. It is enough that there be an intention on the part of one of the parties to
arrest the other, and that there be an intent on the part of the other to submit, under
the belief and impression that submission is necessary.[11]

Under R.A. 4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the offender, but the
confiscation of the drivers license of the latter:

SECTION 29. Confiscation of Driver's License. Law enforcement and

peace officers of other agencies duly deputized by the Director shall, in
apprehending a driver for any violation of this Act or any regulations issued
pursuant thereto, or of local traffic rules and regulations not contrary to any
provisions of this Act, confiscate the license of the driver concerned and issue a
receipt prescribed and issued by the Bureau therefor which shall authorize the
driver to operate a motor vehicle for a period not exceeding seventy-two hours from
the time and date of issue of said receipt. The period so fixed in the receipt shall
not be extended, and shall become invalid thereafter. Failure of the driver to settle
his case within fifteen days from the date of apprehension will be a ground for the
suspension and/or revocation of his license.

377
Similarly, the Philippine National Police (PNP) Operations Manual[12] provides the
following procedure for flagging down vehicles during the conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in
Mobile Car. This rule is a general concept and will not apply in hot pursuit
operations. The mobile car crew shall undertake the following, when applicable: x
xx

m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket

(TCT) or Traffic Violation Report (TVR). Never indulge in prolonged,
unnecessary conversation or argument with the driver or any of the vehicles
occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been under arrest. There was no intention on the
part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into custody.
Prior to the issuance of the ticket, the period during which petitioner was at the police
station may be characterized merely as waiting time. In fact, as found by the trial
court, PO3 Alteza himself testified that the only reason they went to the police sub-
station was that petitioner had been flagged down almost in front of that place.
Hence, it was only for the sake of convenience that they were waiting there. There
was no intention to take petitioner into custody.

In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed

at length whether the roadside questioning of a motorist detained pursuant to a
routine traffic stop should be considered custodial interrogation. The Court held that,
such questioning does not fall under custodial interrogation, nor can it be considered
a formal arrest, by virtue of the nature of the questioning, the expectations of the
motorist and the officer, and the length of time the procedure is conducted. It ruled
as follows:

It must be acknowledged at the outset that a traffic stop significantly curtails

the freedom of action of the driver and the passengers, if any, of the detained
vehicle. Under the law of most States, it is a crime either to ignore a policemans
signal to stop ones car or, once having stopped, to drive away without permission.
xxx

However, we decline to accord talismanic power to the phrase in the

Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in
Miranda requires that it be enforced strictly, but only in those types of situations in
which the concerns that powered the decision are implicated. Thus, we must decide
whether a traffic stop exerts upon a detained person pressures that sufficiently

378
 impair his free exercise of his privilege against self-incrimination to require that he
be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person
questioned will be induced to speak where he would not otherwise do so freely,
Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist pursuant to
a traffic stop is presumptively temporary and brief. The vast majority of
roadside detentions last only a few minutes. A motorists expectations, when he sees
a policemans light flashing behind him, are that he will be obliged to spend a short
period of time answering questions and waiting while the officer checks his license
and registration, that he may then be given a citation, but that in the end he most
likely will be allowed to continue on his way. In this respect, questioning incident
to an ordinary traffic stop is quite different from stationhouse interrogation, which
frequently is prolonged, and in which the detainee often is aware that questioning
will continue until he provides his interrogators the answers they seek. See id., at
451.

Second, circumstances associated with the typical traffic stop are not
such that the motorist feels completely at the mercy of the police. To be sure,
the aura of authority surrounding an armed, uniformed officer and the knowledge
that the officer has some discretion in deciding whether to issue a citation, in
combination, exert some pressure on the detainee to respond to questions. But other
aspects of the situation substantially offset these forces. Perhaps most importantly,
the typical traffic stop is public, at least to some degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-
called Terry stop, see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal
arrest. x x x The comparatively nonthreatening character of detentions of this sort
explains the absence of any suggestion in our opinions that Terry stops are subject
to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops
prompts us to hold that persons temporarily detained pursuant to such stops are not
in custody for the purposes of Miranda.

xxxxxxxxx

We are confident that the state of affairs projected by respondent will not
come to pass. It is settled that the safeguards prescribed by Miranda become
applicable as soon as a suspects freedom of action is curtailed to a degree associated
with formal arrest. California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam).
If a motorist who has been detained pursuant to a traffic stop thereafter is subjected
to treatment that renders him in custody for practical purposes, he will be entitled
to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason,
429 U. S. 492, 495 (1977) (per curiam). (Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only
subjected to modest questions while still at the scene of the traffic stop, he was not
379
at that moment placed under custody (such that he should have been apprised of
his Miranda rights), and neither can treatment of this sort be fairly characterized as
the functional equivalent of a formal arrest. Similarly, neither can petitioner here be
considered under arrest at the time that his traffic citation was being made.

It also appears that, according to City Ordinance No. 98-012, which was violated by
petitioner, the failure to wear a crash helmet while riding a motorcycle is penalized
by a fine only. Under the Rules of Court, a warrant of arrest need not be issued if the
information or charge was filed for an offense penalized by a fine only. It may be
stated as a corollary that neither can a warrantless arrest be made for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly,
when there is an intent on the part of the police officer to deprive the motorist of
liberty, or to take the latter into custody, the former may be deemed to have arrested
the motorist. In this case, however, the officers issuance (or intent to issue) a traffic
citation ticket negates the possibility of an arrest for the same violation.

Even if one were to work under the assumption that petitioner was deemed
arrested upon being flagged down for a traffic violation and while awaiting the
issuance of his ticket, then the requirements for a valid arrest were not complied
with.

This Court has held that at the time a person is arrested, it shall be the duty of
the arresting officer to inform the latter of the reason for the arrest and must show
that person the warrant of arrest, if any. Persons shall be informed of their
constitutional rights to remain silent and to counsel, and that any statement they
might make could be used against them.[14] It may also be noted that in this case,
these constitutional requirements were complied with by the police officers
only after petitioner had been arrested for illegal possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also
be given to a person apprehended due to a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure that the
police do not coerce or trick captive suspects into confessing, to relieve the
inherently compelling pressures generated by the custodial setting itself, which
work to undermine the individuals will to resist, and as much as possible to free
courts from the task of scrutinizing individual cases to try to determine, after the
fact, whether particular confessions were voluntary. Those purposes are implicated

380
 as much by in-custody questioning of persons suspected of misdemeanors as they
are by questioning of persons suspected of felonies.

If it were true that petitioner was already deemed arrested when he was flagged down
for a traffic violation and while he waiting for his ticket, then there would have been
no need for him to be arrested for a second timeafter the police officers allegedly
discovered the drugsas he was already in their custody.

Second, there being no valid arrest, the warrantless search that resulted from
it was likewise illegal.

The following are the instances when a warrantless search is allowed: (i) a
warrantless search incidental to a lawful arrest; (ii) search of evidence in plain view;
(iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs
search; (vi) a stop and frisk search; and (vii) exigent and emergency
circumstances.[15] None of the above-mentioned instances, especially a search
incident to a lawful arrest, are applicable to this case.

It must be noted that the evidence seized, although alleged to be inadvertently

discovered, was not in plain view. It was actually concealed inside a metal container
inside petitioners pocket. Clearly, the evidence was not immediately apparent.[16]

Neither was there a consented warrantless search. Consent to a search is not to be

lightly inferred, but shown by clear and convincing evidence.[17] It must be voluntary
in order to validate an otherwise illegal search; that is, the consent must be
unequivocal, specific, intelligently given and uncontaminated by any duress or
coercion. While the prosecution claims that petitioner acceded to the instruction of
PO3 Alteza, this alleged accession does not suffice to prove valid and intelligent
consent. In fact, the RTC found that petitioner was merely told to take out the
contents of his pocket.[18]

Whether consent to the search was in fact voluntary is a question of fact to be

determined from the totality of all the circumstances. Relevant to this determination
are the following characteristics of the person giving consent and the environment
in which consent is given: (1) the age of the defendant; (2) whether the defendant
was in a public or a secluded location; (3) whether the defendant objected to the
search or passively looked on; (4) the education and intelligence of the defendant;
(5) the presence of coercive police procedures; (6) the defendants belief that no

381
incriminating evidence would be found; (7) the nature of the police questioning; (8)
the environment in which the questioning took place; and (9) the possibly vulnerable
subjective state of the person consenting. It is the State that has the burden of
proving, by clear and positive testimony, that the necessary consent was obtained,
and was freely and voluntarily given.[19] In this case, all that was alleged was that
petitioner was alone at the police station at three in the morning, accompanied by
several police officers. These circumstances weigh heavily against a finding of valid
consent to a warrantless search.

Neither does the search qualify under the stop and frisk rule. While the rule normally
applies when a police officer observes suspicious or unusual conduct, which may
lead him to believe that a criminal act may be afoot, the stop and frisk is merely a
limited protective search of outer clothing for weapons.[20]

In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops
a person for speeding and correspondingly issues a citation instead of arresting the
latter, this procedure does not authorize the officer to conduct a full search of the
car. The Court therein held that there was no justification for a full-blown search
when the officer does not arrest the motorist. Instead, police officers may only
conduct minimal intrusions, such as ordering the motorist to alight from the car or
doing a patdown:

In Robinson, supra, we noted the two historical rationales for the search
incident to arrest exception: (1) the need to disarm the suspect in order to take him
into custody, and (2) the need to preserve evidence for later use at trial. x x x But
neither of these underlying rationales for the search incident to arrest exception is
sufficient to justify the search in the present case.

We have recognized that the first rationaleofficer safetyis both legitimate

and weighty, x x x The threat to officer safety from issuing a traffic citation,
however, is a good deal less than in the case of a custodial arrest. In Robinson, we
stated that a custodial arrest involves danger to an officer because of the extended
exposure which follows the taking of a suspect into custody and transporting him
to the police station. 414 U. S., at 234-235. We recognized that [t]he danger to the
police officer flows from the fact of the arrest, and its attendant proximity, stress,
and uncertainty, and not from the grounds for arrest. Id., at 234, n. 5. A routine
traffic stop, on the other hand, is a relatively brief encounter and is more
analogous to a so-called Terry stop . . . than to a formal arrest. Berkemer v.
McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296
(1973) (Where there is no formal arrest . . . a person might well be less hostile to
the police and less likely to take conspicuous, immediate steps to destroy
incriminating evidence).
382
 This is not to say that the concern for officer safety is absent in the case
of a routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra,
at 413-414. But while the concern for officer safety in this context may justify
the minimal additional intrusion of ordering a driver and passengers out of
the car, it does not by itself justify the often considerably greater intrusion
attending a full fieldtype search. Even without the search authority Iowa urges,
officers have other, independent bases to search for weapons and protect
themselves from danger. For example, they may order out of a vehicle both the
driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414; perform
a patdown of a driver and any passengers upon reasonable suspicion that they may
be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a Terry
patdown of the passenger compartment of a vehicle upon reasonable suspicion that
an occupant is dangerous and may gain immediate control of a weapon, Michigan
v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full search of the
passenger compartment, including any containers therein, pursuant to a custodial
arrest, New York v. Belton, 453 U. S. 454, 460 (1981).

Nor has Iowa shown the second justification for the authority to search incident to
arrestthe need to discover and preserve evidence. Once Knowles was stopped for
speeding and issued a citation, all the evidence necessary to prosecute that offense
had been obtained. No further evidence of excessive speed was going to be found
either on the person of the offender or in the passenger compartment of the car.
(Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to
object to the illegality of his arrest at the earliest opportunity, a waiver of an illegal
warrantless arrest does not, however, mean a waiver of the inadmissibility of
evidence seized during the illegal warrantless arrest.[22]

The Constitution guarantees the right of the people to be secure in their

persons, houses, papers and effects against unreasonable searches and
seizures.[23] Any evidence obtained in violation of said right shall be inadmissible
for any purpose in any proceeding. While the power to search and seize may at times
be necessary to the public welfare, still it must be exercised and the law implemented
without contravening the constitutional rights of citizens, for the enforcement of no
statute is of sufficient importance to justify indifference to the basic principles of
government.[24]

The subject items seized during the illegal arrest are inadmissible.[25] The
drugs are the very corpus delicti of the crime of illegal possession of dangerous
drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal of
the accused.[26]

383
 WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision
of the Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of
conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial Region,
Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is
hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is
hereby ACQUITTED and ordered immediately released from detention, unless his
continued confinement is warranted by some other cause or ground.
RODOLFO ESPANO, accused-petitioner, vs. COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.

DECISION
ROMERO, J.:

This is a petition for review of the decision of the Court of Appeals in CA-
G.R. CR No. 13976 dated January 16, 1995, which affirmed in toto the
[1]

judgment of the Regional Trial Court of Manila, Branch 1, convicting petitioner

Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425,
as amended, otherwise known as the Dangerous Drugs Act.
Petitioner was charged under the following information:

That on or about July 14, 1991, in the City of Manila, Philippines, the said accused,
not being authorized by law to possess or use any prohibited drug, did then and there
wilfully, unlawfully and knowingly have in his possession and under his custody and
control twelve (12) plastic cellophane (bags) containing crushed flowering tops,
marijuana weighing 5.5 grams which is a prohibited drug.

Contrary to law.[2]

The evidence for the prosecution, based on the testimony of Pat. Romeo
Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police
officers, namely, Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of
the Western Police District (WPD), Narcotics Division went to Zamora and
Pandacan Streets, Manila to confirm reports of drug pushing in the area. They
saw petitioner selling something to another person. After the alleged buyer left,
they approached petitioner, identified themselves as policemen, and frisked
him. The search yielded two plastic cellophane tea bags of marijuana. When
asked if he had more marijuana, he replied that there was more in his house.
The policemen went to his residence where they found ten more cellophane tea
bags of marijuana. Petitioner was brought to the police headquarters where he

384
was charged with possession of prohibited drugs. On July 24, 1991, petitioner
posted bail and the trial court issued his order of release on July 29, 1991.
[3] [4]

Annabelle Alip, forensic chemist of the WPD Criminal Investigation

Laboratory Section, testified that the articles sent to her by Pat. Wilfredo Aquino
regarding the apprehension of a certain Rodolfo Espano for examination tested
positive for marijuana, with a total weight of 5.5 grams.
By way of defense, petitioner testified that on said evening, he was sleeping
in his house and was awakened only when the policemen handcuffed him. He
alleged that the policemen were looking for his brother-in-law Lauro, and when
they could not find the latter, he was instead brought to the police station for
investigation and later indicted for possession of prohibited drugs. His wife
Myrna corroborated his story.
The trial court rejected petitioners defense as a mere afterthought and found
the version of the prosecution more credible and trustworthy.
Thus, on August 14, 1992, the trial court rendered a decision, convicting
petitioner of the crime charged, the dispositive portion of which reads:

WHEREFORE there being proof beyond reasonable doubt, the court finds the accused
Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in
relation to Section 2 (e-L) (I) of Republic Act No. 6425 as amended by Batas
Pambansa Blg. 179, and pursuant to law hereby sentences him to suffer imprisonment
of six (6) years and one (1) day to twelve (12) years and to pay a fine of P6,000.00
with subsidiary imprisonment in case of default plus costs.

The marijuana is declared forfeited in favor of government and shall be turned over to
the Dangerous Drugs Board without delay.

SO ORDERED.[5]

Petitioner appealed the decision to the Court of Appeals. The appellate

court, however, affirmed the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him
on the basis of the following: (a) the pieces of evidence seized were
inadmissible; (b) the superiority of his constitutional right to be presumed
innocent over the doctrine of presumption of regularity; (c) he was denied the
constitutional right of confrontation and to compulsory process; and (d) his
conviction was based on evidence which was irrelevant and not properly
identified.

385
 After a careful examination of the records of the case, this Court finds no
compelling reason sufficient to reverse the decisions of the trial and appellate
courts.
First, it is a well settled doctrine that findings of trial courts on the credibility
of witnesses deserve a high degree of respect. Having observed the
deportment of witnesses during the trial, the trial judge is in a better position to
determine the issue of credibility and, thus, his findings will not be disturbed
during appeal in the absence of any clear showing that he had overlooked,
misunderstood or misapplied some facts or circumstances of weight and
substance which could have altered the conviction of the appellants. [6]

In this case, the findings of the trial court that the prosecution witnesses
were more credible than those of the defense must stand. Petitioner failed to
show that Pat. Pagilagan, in testifying against him, was motivated by reasons
other than his duty to curb drug abuse and had any intent to falsely impute to
him such a serious crime as possession of prohibited drugs. In the absence of
such ill motive, the presumption of regularity in the performance of his official
duty must prevail.
In People v. Velasco, this Court reiterated the doctrine of presumption of
[7]

regularity in the performance of official duty which provides:

x x x. Appellant failed to establish that Pat. Godoy and the other members of the buy-
bust team are policemen engaged in mulcting or other unscrupulous activities who
were motivated either by the desire to extort money or exact personal vengeance, or
by sheer whim and caprice, when they entrapped her. And in the absence of proof of
any intent on the part of the police authorities to falsely impute such a serious crime
against appellant, as in this case, the presumption of regularity in the performance of
official duty, . . ., must prevail over the self-serving and uncorroborated claim of
appellant that she had been framed. [8]

Furthermore, the defense set up by petitioner does not deserve any

consideration. He simply contended that he was in his house sleeping at the
time of the incident. This Court has consistently held that alibi is the weakest of
all defenses; and for it to prosper, the accused has the burden of proving that
he was not at the scene of the crime at the time of its commission and that it
was physically impossible for him to be there. Moreover, the claim of a frame-
up, like alibi, is a defense that has been invariably viewed by the Court with
disfavor for it can just as easily be concocted but difficult to prove, and is a
common and standard line of defense in most prosecutions arising from
violations of the Dangerous Drugs Act. No clear and convincing evidence was
[9]

presented by petitioner to prove his defense of alibi.

386
 Second, petitioner contends that the prosecutions failure to present the
alleged informant in court cast a reasonable doubt which warrants his acquittal.
This is again without merit, since failure of the prosecution to produce the
informant in court is of no moment especially when he is not even the best
witness to establish the fact that a buy-bust operation had indeed been
conducted. In this case, Pat. Pagilagan, one of the policemen who
apprehended petitioner, testified on the actual incident of July 14, 1991, and
identified him as the one they caught in possession of prohibited drugs. Thus,

We find that the prosecution had satisfactorily proved its case against appellants. There is no
compelling reason for us to overturn the finding of the trial court that the testimony of Sgt.
Gamboa, the lone witness for the prosecution, was straightforward, spontaneous and convincing.
The testimony of a sole witness, if credible and positive and satisfies the court beyond reasonable
doubt, is sufficient to convict.[10]

Thus on the basis of Pat. Pagilagans testimony, the prosecution was able
to prove that petitioner indeed committed the crime charged; consequently, the
finding of conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise
be ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:

A peace officer or a private person may, without a warrant, arrest a person:

a. when, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense;

x x x x x x x x x.

Petitioners arrest falls squarely under the aforecited rule. He was caught in
flagranti as a result of a buy-bust operation conducted by police officers on the
basis of information received regarding the illegal trade of drugs within the area
of Zamora and Pandacan Streets, Manila. The police officer saw petitioner
handing over something to an alleged buyer. After the buyer left, they searched
him and discovered two cellophanes of marijuana. His arrest was, therefore,
lawful and the two cellophane bags of marijuana seized were admissible in
evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioners residence,
however, the same are inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches
and seizures under Article III, Section 2 which provides:

387
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.

An exception to the said rule is a warrantless search incidental to a lawful

arrest for dangerous weapons or anything which may be used as proof of the
commission of an offense. It may extend beyond the person of the one
[11]

arrested to include the premises or surroundings under his immediate

control. In this case, the ten cellophane bags of marijuana seized at petitioners
house after his arrest at Pandacan and Zamora Streets do not fall under the
said exceptions.
In the case of People v. Lua, this Court held:
[12]

As regards the brick of marijuana found inside the appellants house, the trial court
correctly ignored it apparently in view of its inadmissibility. While initially the arrest
as well as the body search was lawful, the warrantless search made inside the
appellants house became unlawful since the police operatives were not armed with a
search warrant. Such search cannot fall under search made incidental to a lawful
arrest, the same being limited to body search and to that point within reach or control
of the person arrested, or that which may furnish him with the means of committing
violence or of escaping. In the case at bar, appellant was admittedly outside his house
when he was arrested.Hence, it can hardly be said that the inner portion of his house
was within his reach or control.

The articles seized from petitioner during his arrest were valid under the
doctrine of search made incidental to a lawful arrest. The warrantless search
made in his house, however, which yielded ten cellophane bags of marijuana
became unlawful since the police officers were not armed with a search warrant
at the time. Moreover, it was beyond the reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable
doubt of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic
Act No. 6425, as amended. Under the said provision, the penalty imposed is six
years and one day to twelve years and a fine ranging from six thousand to
twelve thousand pesos. With the passage of Republic Act No. 7659, which took
effect on December 31, 1993, the imposable penalty shall now depend on the
quantity of drugs recovered. Under the provisions of Republic Act No. 7629,
Section 20, and as interpreted in People v. Simon and People v. Lara, if the
[13] [14]

quantity of marijuana involved is less than 750 grams, the imposable penalty
388
ranges from prision correccional to reclusion temporal. Taking into
consideration that petitioner is not a habitual delinquent, the amendatory
provision is favorable to him and the quantity of marijuana involved is less than
750 grams, the penalty imposed under Republic Act No. 7659 should be
applied. There being no mitigating nor aggravating circumstances, the
imposable penalty shall be prision correccional in its medium period. Applying
the Indeterminate Sentence Law, the maximum penalty shall be taken from the
medium period of prision correccional, which is two (2) years, four (4) months
and one (1) day to four (4) years and two (2) months, while the minimum shall
be taken from the penalty next lower in degree, which is one (1) month and one
(1) day to six (6) months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The decision of the
Court of Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is
AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is
sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1)
day of arresto mayor, as minimum to TWO (2) years, FOUR (4) months and
ONE (1) day of prision correccional, as maximum.
UNITED LABORATORIES, INC., petitioner, vs. ERNESTO ISIP and/or
SHALIMAR PHILIPPINES and/or OCCUPANTS, Shalimar Building,
No. 1571, Aragon Street, Sta. Cruz, Manila, respondents.

DECISION
CALLEJO, SR., J.:

Rolando H. Besarra, Special Investigator III of the National Bureau of

Investigation (NBI), filed an application, in the Regional Trial Court (RTC) of
Manila, for the issuance of a search warrant concerning the first and second
floors of the Shalimar Building, located at No. 1571, Aragon Street (formerly No.
1524, Lacson Avenue, Sta. Cruz, Manila) occupied and/or used by Shalimar
Philippines, owned/operated by Ernesto Isip; and for the seizure of the following
for violation of Section 4(a), in relation to Section 8, of Republic Act (R.A.) No.
8203:
a. Finished or unfinished products of UNITED LABORATORIES (UNILAB), particularly
REVICON multivitamins;
b. Sundry items such as tags, labels, boxes, packages, wrappers, receptacles,
advertisements and other paraphernalia used in the offering for sale, sale and/or
distribution of counterfeit REVICON multivitamins;
c. Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders
and all other books of accounts and documents used in recording the manufacture
and/or importation, distribution and/or sales of counterfeit REVICON multivitamins.[1]

389
 The application was docketed as People v. Ernesto Isip, et al.,
Respondents, Search Warrant Case No. 04-4916 and raffled to Branch 24 of
the court. Appended thereto were the following: (1) a sketch[2]showing the
location of the building to be searched; (2) the affidavit[3] of Charlie Rabe of the
Armadillo Protection and Security Agency hired by United Laboratories, Inc.
(UNILAB), who allegedly saw the manufacture, production and/or distribution of
fake drug products such as Revicon by Shalimar Philippines; (3) the letter-
request of UNILAB, the duly licensed and exclusive manufacturer and/or
distributor of Revicon and Disudrin, for the monitoring of the unauthorized
production/manufacture of the said drugs and, if warranted, for their seizure; (4)
the letter-complaint[4] of UNILAB issued through its Director of the Security and
Safety Group; and (5) the joint affidavit[5] of NBI Agents Roberto Divinagracia
and Rolando Besarra containing the following allegations:
2. When learned that an Asset was already placed by ARMADILLO PROTECTIVE AND
SECURITY AGENCY named CHARLIE RABE, who was renting a room since
November 2003, at the said premises located at No. 1571 Aragon St., Sta. Cruz,
Manila. MR. RABE averred that the owner of the premises is a certain MR. ERNESTO
ISIP and that the said premises which is known as SHALIMAR PHILIPPINES,
Shalimar Building, are being used to manufacture counterfeit UNILAB products,
particularly REVICON multivitamins, which was already patented by UNILAB since
1985;
3. Upon verification of the report, we found out that the said premises is a six-story
structure, with an additional floor as a penthouse, and colored red-brown. It has a
tight security arrangement wherein non-residents are not allowed to enter or
reconnoiter in the premises;
4. We also learned that its old address is No. 1524 Lacson Avenue, Sta. Cruz, Manila,
and has a new address as 1571 Aragon St., Sta. Cruz, Manila; and that the area of
counterfeiting operations are the first and second floors of Shalimar Building;
5. Since we cannot enter the premises, we instructed the Asset to take pictures of the
area especially the places wherein the clandestine manufacturing operations were
being held. At a peril to his well-being and security, the Asset was able to take
photographs herein incorporated into this Search Warrant Application.[6]

A representative from UNILAB, Michael Tome, testified during the hearing

on the application for the search warrant. After conducting the requisite
searching questions, the court granted the application and issued Search
Warrant No. 04-4916 dated January 27, 2004, directing any police officer of the
law to conduct a search of the first and second floors of the Shalimar Building
located at No. 1571, Aragon Street, Sta. Cruz, Manila. The court also directed
the police to seize the following items:
a. Finished or unfinished products of UNITED LABORATORIES (UNILAB), particularly
REVICON multivitamins;

390
 b. Sundry items such as tags, labels, boxes, packages, wrappers, receptacles,
advertisements and other paraphernalia used in the offering for sale, sale and/or
distribution of counterfeit REVICON multivitamins;
c. Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders
and all other books of accounts and documents used in recording the manufacture
and/or importation, distribution and/or sales of counterfeit REVICON multivitamins.[7]
The court also ordered the delivery of the seized items before it, together
with a true inventory thereof executed under oath.
The search warrant was implemented at 4:30 p.m. on January 27, 2004 by
NBI agents Besarra and Divinagracia, in coordination with UNILAB employees.
No fake Revicon multivitamins were found; instead, there were sealed boxes at
the first and second floors of the Shalimar Building which, when opened by the
NBI agents in the presence of respondent Isip, contained the following:
QUANTITY/UNIT DESCRIPTION

792 Bottles Disudrin 60 ml.

30 Boxes (100 pieces each) Inoflox 200 mg.[8]
NBI Special Investigator Divinagracia submitted an inventory of the things
seized in which he declared that the search of the first and second floors of the
Shalimar Building at No. 1571, Aragon Street, Sta. Cruz, Manila, the premises
described in the warrant, was done in an orderly and peaceful manner. He also
filed a Return of Search Warrant,[9] alleging that no other articles/items other
than those mentioned in the warrant and inventory sheet were seized. The
agent prayed that of the items seized, ten boxes of Disudrin 60 ml., and at least
one box of Inoflox be turned over to the custody of the Bureau of Food and
Drugs (BFAD) for examination.[10] The court issued an order granting the
motion, on the condition that the turn over be made before the court, in the
presence of a representative from the respondents and the court.[11]
The respondents filed an Urgent Motion to Quash the Search Warrant or to
Suppress Evidence.[12] They contended that the implementing officers of the
NBI conducted their search at the first, second, third and fourth floors of the
building at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila, where items in open
display were allegedly found. They pointed out, however, that such premises
was different from the address described in the search warrant, the first and
second floors of the Shalimar Building located at No. 1571, Aragon Street, Sta.
Cruz, Manila. The respondents, likewise, asserted that the NBI officers seized
Disudrin and Inoflox products which were not included in the list of properties
to be seized in the search warrant.

391
 UNILAB, in collaboration with the NBI, opposed the motion, insisting that
the search was limited to the first and second floors of the Shalimar building
located at the corner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila.
They averred that, based on the sketch appended to the search warrant
application, Rabes affidavit, as well as the joint affidavit of Besarra and
Divinagracia, the building where the search was conducted was located at No.
1571, Aragon Street corner Lacson Avenue, Sta. Cruz, Manila. They pointed
out that No. 1524 Lacson Avenue, Sta. Cruz, Manila was the old address, and
the new address was No. 1571, Aragon Street, Sta. Cruz, Manila. They
maintained that the warrant was not implemented in any other place.[13]
In reply, the respondents insisted that the items seized were different from
those listed in the search warrant. They also claimed that the seizure took place
in the building located at No. 1524-A which was not depicted in the sketch of
the premises which the applicant submitted to the trial court.[14] In accordance
with the ruling of this Court in People v. Court of Appeals,[15] the respondents
served a copy of their pleading on UNILAB.[16]
On March 11, 2004, the trial court issued an Order[17] granting the motion of
the respondents, on the ground that the things seized, namely, Disudrin and
Inoflox, were not those described in the search warrant. On March 16, 2004,
the trial court issued an advisory[18] that the seized articles could no longer be
admitted in evidence against the respondents in any proceedings, as the search
warrant had already been quashed.
UNILAB, through the Ureta Law Office, filed a motion, in collaboration with
the NBI agents, for the reconsideration of the order, contending that the ground
used by the court in quashing the warrant was not that invoked by the
respondents, and that the seizure of the items was justified by the plain view
doctrine. The respondents objected to the appearance of the counsel of
UNILAB, contending that the latter could not appear for the People of the
Philippines. The respondents moved that the motion for reconsideration of
UNILAB be stricken off the record. Disputing the claims of UNILAB, they
insisted that the items seized were contained in boxes at the time of the seizure
at No. 1524-A, Lacson Avenue corner Aragon Street, Sta. Cruz, Manila, and
were not apparently incriminating on plain view. Moreover, the seized items
were not those described and itemized in the search warrant application, as
well as the warrant issued by the court itself. The respondents emphasized that
the Shalimar Laboratories is authorized to manufacture galenical preparations
of the following products:
Products:
- Povidone Iodine

392
 - Chamomile Oil
- Salicylic Acid 10 g.
- Hydrogen Peroxide 3% Topical Solution
- Aceite de Alcamforado
- Aceite de Manzanilla[19]
In a manifestation and opposition, the respondents assailed the appearance
of the counsel of UNILAB, and insisted that it was not authorized to appear
before the court under the Rules of Court, and to file pleadings. They averred
that the BFAD was the authorized government agency to file an application for
a search warrant.
In its counter-manifestation, UNILAB averred that it had the personality to
file the motion for reconsideration because it was the one which sought the filing
of the application for a search warrant; besides, it was not proscribed by Rule
126 of the Revised Rules of Criminal Procedure from participating in the
proceedings and filing pleadings. The only parties to the case were the NBI and
UNILAB and not the State or public prosecutor. UNILAB also argued that the
offended party, or the holder of a license to operate, may intervene through
counsel under Section 16 of Rule 110, in relation to Section 7(e), of the Rules
of Criminal Procedure.
UNILAB prayed that an ocular inspection be conducted of the place
searched by the NBI officers.[20] In their rejoinder, the respondents manifested
that an ocular inspection was the option to look forward to.[21] However, no such
ocular inspection of the said premises was conducted.
In the meantime, the BFAD submitted to the court the result of its
examination of the Disudrin and Inoflox samples which the NBI officers seized
from the Shalimar Building. On its examination of the actual component of
Inoflox, the BFAD declared that the substance failed the test.[22] The BFAD,
likewise, declared that the examined Disudrin syrup failed the test.[23] The BFAD
had earlier issued the following report:
PRODUCT NAME Manufacturer L.N. E.D. FINDINGS
1.Phenylpropanolamine Unilab 21021552 3-06 -Registered, however,
(Disudrin) label/physical
12.5 mg./5mL Syrup appearance does not
conform with the
BFAD approved
label/ registered
specifications.
2.Ofloxacin (Inoflox) Unilab 99017407 3-05 -Registered, however,
200 mg. tablet. label/physical
appearance does not

393
 conform with the
BFAD approved
label/ registered
specifications.[24]
On May 28, 2004, the trial court issued an Order[25] denying the motion for
reconsideration filed by UNILAB. The court declared that:

The Search Warrant is crystal clear: The seizing officers were only authorized to take
possession of finished or unfinished products of United Laboratories (UNILAB),
particularly REVICON Multivitamins, and documents evidencing the counterfeit
nature of said products. The Receipt/Inventory of Property Seized pursuant to the
warrant does not, however, include REVICON but other products. And whether or not
these seized products are imitations of UNILAB items is beside the point. No
evidence was shown nor any was given during the proceedings on the application for
search warrant relative to the seized products.

On this score alone, the search suffered from a fatal infirmity and, hence, cannot be
sustained.[26]

UNILAB, thus, filed the present petition for review on certiorari under Rule
45 of the Rules of Court, where the following issues are raised:

Whether or not the seized 792 bottles of Disudrin 60 ml. and 30 boxes of Inoflox 200
mg. are INADMISSIBLE as evidence against the respondents because they constitute
the fruit of the poisonous tree or, CONVERSELY, whether or not the seizure of the
same counterfeit drugs is justified and lawful under the plain view doctrine and,
hence, the same are legally admissible as evidence against the respondents in any and
all actions?[27]

The petitioner avers that it was deprived of its right to a day in court when
the trial court quashed the search warrant for a ground which was not raised by
the respondents herein in their motion to quash the warrant. As such, it argues
that the trial court ignored the issue raised by the respondents. The petitioner
insists that by so doing, the RTC deprived it of its right to due process. The
petitioner asserts that the description in the search warrant of the products to
be seized finished or unfinished products of UNILAB is sufficient to include
counterfeit drugs within the premises of the respondents not covered by any
license to operate from the BFAD, and/or not authorized or licensed to
manufacture, or repackage drugs produced or manufactured by UNILAB. Citing
the ruling of this Court in Padilla v. Court of Appeals,[28] the petitioner asserts
that the products seized were in plain view of the officers; hence, may be seized
by them. The petitioner posits that the respondents themselves admitted that
394
the seized articles were in open display; hence, the said articles were in plain
view of the implementing officers.
In their comment on the petition, the respondents aver that the petition
should have been filed before the Court of Appeals (CA) because factual
questions are raised. They also assert that the petitioner has no locus standi to
file the petition involving the validity and the implementation of the search
warrant. They argue that the petitioner merely assisted the NBI, the BFAD and
the Department of Justice; hence, it should have impleaded the said
government agencies as parties-petitioners. The petition should have been filed
by the Office of the Solicitor General (OSG) in behalf of the NBI and/or the
BFAD, because under the 1987 Revised Administrative Code, the OSG is
mandated to represent the government and its officers charged in their official
capacity in cases before the Supreme Court. The respondents further assert
that the trial court may consider issues not raised by the parties if such
consideration would aid the court in the just determination of the case.
The respondents, likewise, maintain that the raiding team slashed the
sealed boxes so fast even before respondent Isip could object. They argue that
the seizure took place at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila
covered by Transfer Certificate of Title (TCT) No. 220778, and not at No. 1571,
Aragon Street, Sta. Cruz, Manila covered by TCT No. 174412 as stated in the
search warrant. They assert that the ruling of the Court in People v. Court of
Appeals[29] is applicable in this case. They conclude that the petitioner failed to
prove the factual basis for the application of the plain view doctrine.[30]
In reply, the petitioner asserts that it has standing and is, in fact, the real
party-in-interest to defend the validity of the search warrant issued by the RTC;
after all, it was upon its instance that the application for a search warrant was
filed by the NBI, which the RTC granted. It asserts that it is not proscribed under
R.A. No. 8203 from filing a criminal complaint against the respondents and
requesting the NBI to file an application for a search warrant. The petitioner
points out that the Rules of Criminal Procedure does not specifically prohibit a
private complainant from defending the validity of a search warrant. Neither is
the participation of a state prosecutor provided in Rule 126 of the said Rules.
After all, the petitioner insists, the proceedings for the application and issuance
of a search warrant is not a criminal action. The petitioner asserts that the place
sought to be searched was sufficiently described in the warrant for, after all,
there is only one building on the two parcels of land described in two titles where
Shalimar Philippines is located, the place searched by the NBI officers.[31] It also
asserts that the building is located at the corner of Aragon Street and Lacson
Avenue, Sta. Cruz, Manila.[32]

395
 The petitioner avers that the plain view doctrine is applicable in this case
because the boxes were found outside the door of the respondents laboratory
on the garage floor. The boxes aroused the suspicion of the members of the
raiding team precisely because these were marked with the distinctive UNILAB
logos. The boxes in which the items were contained were themselves so
designated to replicate true and original UNILAB boxes for the same medicine.
Thus, on the left hand corner of one side of some of the boxes[33] the letters
ABR under the words 60 ml, appeared to describe the condition/quality of the
bottles inside (as it is with genuine UNILAB box of the true medicine of the same
brand). The petitioner pointed out that ABR is the acronym for amber bottle
round describing the bottles in which the true and original Disudrin (for children)
is contained.
The petitioner points out that the same boxes also had their own license
plates which were instituted as among its internal control/countermeasures.
The license plates indicate that the items within are, supposedly, Disudrin. The
NBI officers had reasonable ground to believe that all the boxes have one and
the same data appearing on their supposedly distinctive license plates. The
petitioner insists that although some of the boxes marked with the distinctive
UNILAB logo were, indeed, sealed, the tape or seal was also a copy of the
original because these, too, were marked with the distinctive UNILAB logo. The
petitioner appended to its pleading pictures of the Shalimar building and the
rooms searched showing respondent Isip;[34] the boxes seized by the police
officers containing Disudrin syrup;[35] and the boxes containing Inoflox and its
contents.[36]
The issues for resolution are the following: (1) whether the petitioner is the
proper party to file the petition at bench; (2) whether it was proper for the
petitioner to file the present petition in this Court under Rule 45 of the Rules of
Court; and (3) whether the search conducted by the NBI officers of the first and
second floors of the Shalimar building and the seizure of the sealed boxes
which, when opened, contained Disudrin syrup and Inoflox, were valid.
On the first issue, we agree with the petitioners contention that a search
warrant proceeding is, in no sense, a criminal action[37] or the commencement
of a prosecution.[38] The proceeding is not one against any person, but is solely
for the discovery and to get possession of personal property. It is a special and
peculiar remedy, drastic in nature, and made necessary because of public
necessity. It resembles in some respect with what is commonly known as John
Doe proceedings.[39] While an application for a search warrant is entitled like a
criminal action, it does not make it such an action.

396
 A search warrant is a legal process which has been likened to a writ of
discovery employed by the State to procure relevant evidence of crime.[40] It is
in the nature of a criminal process, restricted to cases of public
prosecutions.[41] A search warrant is a police weapon, issued under the police
power. A search warrant must issue in the name of the State, namely, the
People of the Philippines.[42]
A search warrant has no relation to a civil process. It is not a process for
adjudicating civil rights or maintaining mere private rights.[43] It concerns the
public at large as distinguished from the ordinary civil action involving the rights
of private persons.[44] It may only be applied for in the furtherance of public
prosecution.[45]
However, a private individual or a private corporation complaining to the NBI
or to a government agency charged with the enforcement of special penal laws,
such as the BFAD, may appear, participate and file pleadings in the search
warrant proceedings to maintain, inter alia, the validity of the search warrant
issued by the court and the admissibility of the properties seized in anticipation
of a criminal case to be filed; such private party may do so in collaboration with
the NBI or such government agency. The party may file an opposition to a
motion to quash the search warrant issued by the court, or a motion for the
reconsideration of the court order granting such motion to quash.[46]
In this case, UNILAB, in collaboration with the NBI, opposed the
respondents motion to quash the search warrant. The respondents served
copies of their reply and opposition/comment to UNILAB, through Modesto
Alejandro, Jr.[47] The court a quo allowed the appearance of UNILAB and
accepted the pleadings filed by it and its counsel.
The general rule is that the proper party to file a petition in the CA or
Supreme Court to assail any adverse order of the RTC in the search warrant
proceedings is the People of the Philippines, through the OSG. However,
in Columbia Pictures Entertainment, Inc. v. Court of Appeals,[48] the Court
allowed a private corporation (the complainant in the RTC) to file a petition
for certiorari, and considered the petition as one filed by the OSG. The Court in
the said case even held that the petitioners therein could argue its case in lieu
of the OSG:

From the records, it is clear that, as complainants, petitioners were involved in the
proceedings which led to the issuance of Search Warrant No. 23. In People v. Nano,
the Court declared that while the general rule is that it is only the Solicitor General
who is authorized to bring or defend actions on behalf of the People or the Republic of
the Philippines once the case is brought before this Court or the Court of Appeals, if

397
there appears to be grave error committed by the judge or a lack of due process, the
petition will be deemed filed by the private complainants therein as if it were filed by
the Solicitor General. In line with this ruling, the Court gives this petition due course
and will allow petitioners to argue their case against the questioned order in lieu of the
Solicitor General.[49]

The general rule is that a party is mandated to follow the hierarchy of courts.
However, in exceptional cases, the Court, for compelling reasons or if
warranted by the nature of the issues raised, may take cognizance of petitions
filed directly before it.[50] In this case, the Court has opted to take cognizance of
the petition, considering the nature of the issues raised by the parties.
The Court does not agree with the petitioners contention that the issue of
whether the Disudrin and Inoflox products were lawfully seized was never
raised in the pleadings of the respondents in the court a quo. Truly, the
respondents failed to raise the issue in their motion to quash the search warrant;
in their reply, however, they averred that the seized items were not included in
the subject warrant and, therefore, were not lawfully seized by the raiding team.
They also averred that the said articles were not illegal per se, like explosives
and shabu, as to justify their seizure in the course of unlawful search.[51] In their
Opposition/Comment filed on March 15, 2004, the respondents even alleged
the following:

The jurisdiction of this Honorable Court is limited to the determination of whether

there is a legal basis to quash the search warrant and/or to suppress the seized articles
in evidence. Since the articles allegedly seized during the implementation of the
search warrant Disudrin and Inoflux products were not included in the search warrant,
they were, therefore, not lawfully seized by the raiding team; they are not illegal per
se, as it were, like an arms cache, subversive materials or shabu as to justify their
seizure in the course of a lawful search, or being in plain view or some such. No need
whatever for some public assay.

The NBI manifestation is a glaring admission that it cannot tell without proper
examination or assay that the Disudrin and Inoflox samples allegedly seized from
respondents place were counterfeit. All the relevant presumptions are in favor of
legality.[52]

The Court, therefore, finds no factual basis for the contention of the
petitioner that the respondents never raised in the court a quo the issue of
whether the seizure of the Disudrin and Inoflox products was valid.
In any event, the petitioner filed a motion for the reconsideration of the
March 11, 2004 Order of the court a quo on the following claims:
398
 2.01 The Honorable Court ERRED in ruling on a non-issue or the issue as to the alleged
failure to particularly describe in the search warrant the items to be seized but
upon which NO challenge was then existing and/or NO controversy is raised;
2.02 The Honorable Court ERRED in its ruling that finished or unfinished products of
UNILAB cannot stand the test of a particular description for which it then
reasons that the search is, supposedly unreasonable; and,
2.03 The Honorable Court ERRED in finding that the evidence seized is lawfully
inadmissible against respondents.[53]
The court a quo considered the motion of the petitioner and the issue raised
by it before finally resolving to deny the same. It cannot thus be gainsaid that
the petitioner was denied its right to due process.
On the validity of the seizure of the sealed boxes and its contents of Disudrin
and Inoflox, the Court, likewise, rejects the contention of the petitioner.
A search warrant, to be valid, must particularly describe the place to be
searched and the things to be seized. The officers of the law are to seize only
those things particularly described in the search warrant. A search warrant is
not a sweeping authority empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds of evidence or articles
relating to a crime. The search is limited in scope so as not to be general or
explanatory. Nothing is left to the discretion of the officer executing the
warrant.[54]
Objects, articles or papers not described in the warrant but on plain view of
the executing officer may be seized by him. However, the seizure by the officer
of objects/articles/papers not described in the warrant cannot be presumed as
plain view. The State must adduce evidence, testimonial or documentary, to
prove the confluence of the essential requirements for the doctrine to apply,
namely: (a) the executing law enforcement officer has a prior justification for an
initial intrusion or otherwise properly in a position from which he can view a
particular order; (b) the officer must discover incriminating evidence
inadvertently; and (c) it must be immediately apparent to the police that the
items they observe may be evidence of a crime, contraband, or otherwise
subject to seizure.[55]
The doctrine is not an exception to the warrant. It merely serves to
supplement the prior justification whether it be a warrant for another object, hot
pursuit, search as an incident to a lawful arrest or some other legitimate reason
for being present, unconnected with a search directed against the accused. The
doctrine may not be used to extend a general exploratory search from one
object to another until something incriminating at last emerges. It is a
recognition of the fact that when executing police officers comes across

399
immediately incriminating evidence not covered by the warrant, they should not
be required to close their eyes to it, regardless of whether it is evidence of the
crime they are investigating or evidence of some other crime. It would be
needless to require the police to obtain another warrant.[56] Under the doctrine,
there is no invasion of a legitimate expectation of privacy and there is no search
within the meaning of the Constitution.
The immediate requirement means that the executing officer can, at the time
of discovery of the object or the facts therein available to him, determine
probable cause of the objects incriminating evidence.[57]In other words, to be
immediate, probable cause must be the direct result of the officers
instantaneous sensory perception of the object.[58] The object is apparent if the
executing officer had probable cause to connect the object to criminal activity.
The incriminating nature of the evidence becomes apparent in the course of the
search, without the benefit of any unlawful search or seizure. It must be
apparent at the moment of seizure.[59]
The requirement of inadvertence, on the other hand, means that the officer
must not have known in advance of the location of the evidence and intend to
seize it.[60] Discovery is not anticipated.[61]
The immediately apparent test does not require an unduly high degree of
certainty as to the incriminating character of evidence. It requires merely that
the seizure be presumptively reasonable assuming that there is probable cause
to associate the property with criminal activity; that a nexus exists between a
viewed object and criminal activity.[62]
Incriminating means the furnishing of evidence as proof of circumstances
tending to prove the guilt of a person.[63]
Indeed, probable cause is a flexible, common sense standard. It merely
requires that the facts available to the officer would warrant a man of reasonable
caution and belief that certain items may be contrabanded or stolen property or
useful as evidence of a crime. It does not require proof that such belief be
correct or more likely than true. A practical, non-traditional probability that
incriminating evidence is involved is all that is required. The evidence thus
collected must be seen and verified as understood by those experienced in the
field of law enforcement.[64]
In this case, Disudrin and/or Inoflox were not listed in the search warrant
issued by the court a quo as among the properties to be seized by the NBI
agents. The warrant specifically authorized the officers only to seize counterfeit
Revicon multivitamins, finished or unfinished, and the documents used in
recording, manufacture and/or importation, distribution and/or sale, or the

400
offering for sale, sale and/or distribution of the said vitamins. The implementing
officers failed to find any counterfeit Revicon multivitamins, and instead seized
sealed boxes which, when opened at the place where they were found, turned
out to contain Inoflox and Disudrin.
It was thus incumbent on the NBI agents and the petitioner to prove their
claim that the items were seized based on the plain view doctrine. It is not
enough to prove that the sealed boxes were in the plain view of the NBI agents;
evidence should have been adduced to prove the existence of all the essential
requirements for the application of the doctrine during the hearing of the
respondents motion to quash, or at the very least, during the hearing of the NBI
and the petitioners motion for reconsideration on April 16, 2004. The
immediately apparent aspect, after all, is central to the plain view exception
relied upon by the petitioner and the NBI. There is no showing that the NBI and
the petitioner even attempted to adduce such evidence. In fact, the petitioner
and the NBI failed to present any of the NBI agents who executed the warrant,
or any of the petitioners representative who was present at the time of the
enforcement of the warrant to prove that the enforcing officers discovered the
sealed boxes inadvertently, and that such boxes and their contents were
incriminating and immediately apparent. It must be stressed that only the NBI
agent/agents who enforced the warrant had personal knowledge whether the
sealed boxes and their contents thereof were incriminating and that they were
immediately apparent.[65] There is even no showing that the NBI agents knew
the contents of the sealed boxes before they were opened.
In sum then, the Court finds and so hold that the petitioner and the NBI failed
to prove the essential requirements for the application of the plain view doctrine.
G.R. No. L-27360 February 28, 1968

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as
Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila; and
MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners,
vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of
First Instance of Manila, respondents.

Office of the Solicitor General for petitioners.

Juan T. David for respondents.

ZALDIVAR, J.:

This is an original action for prohibition and certiorari, with preliminary injunction filed by
Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis,
Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police
Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of

401
the Court of First Instance of Manila, praying for the annulment of the order issued by respondent
Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967,
which authorized the release under bond of certain goods which were seized and held by petitioners
in connection with the enforcement of the Tariff and Customs Code, but which were claimed by
respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any
manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court
issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing
and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said
case.

Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police
Department, acting upon a reliable information received on November 3, 1966 to the effect that a
certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the
following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders
of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of
Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1
at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went
after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks
consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of
Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a
"Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau
of Customs in the name of a certain Bienvenido Naguit.

Claiming to have been prejudiced by the seizure and detention of the two trucks and their
cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a
petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No.
67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having
purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the
trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657
Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police
Department without search warrant issued by a competent court; that anila Chief of Police Ricardo
Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods
contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally
assigned appraisers to examine the goods because the goods were no longer under the control and
supervision of the Commissioner of Customs; that the goods, even assuming them to have been
misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and
Customs Code because Remedios Mago had bought them from another person without knowledge
that they were imported illegally; that the bales had not yet been opened, although Chief of Police
Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and
that unless restrained their constitutional rights would be violated and they would truly suffer
irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a
restraining order, ex parte, enjoining the above-named police and customs authorities, or their
agents, from opening the bales and examining the goods, and a writ of mandamus for the return of
the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their
favor.

On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex

parte restraining the respondents in Civil Case No. 67496 — now petitioners in the instant case
before this Court — from opening the nine bales in question, and at the same time set the hearing of
the petition for preliminary injunction on November 16, 1966. However, when the restraining order
was received by herein petitioners, some bales had already been opened by the examiners of the
Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city
fiscal and a representative of herein respondent Remedios Mago.

402
 Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case
No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila
and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed,
on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary
Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks
and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of
First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive
jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case,
the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the
administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs
had not lost jurisdiction over the goods because the full duties and charges thereon had not been
paid; that the members of the Manila Police Department had the power to make the seizure; that the
seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and
Customs Code could effect search, seizures and arrests in inland places in connection with the
enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein
petitioners averred in the court below that the writ could not be granted for the reason that Remedios
Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were
subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of
Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not
suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining
order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the
case.

At the hearing on December 9, 1966, the lower Court, with the conformity of the parties,
ordered that an inventory of the goods be made by its clerk of court in the presence of the
representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center
of the Manila Police Department. On December 13, 1966, the above-named persons filed a
"Compliance" itemizing the contents of the nine bales.

Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to
release the goods, alleging that since the inventory of the goods seized did not show any article of
prohibited importation, the same should be released as per agreement of the patties upon her
posting of the appropriate bond that may be determined by the court. Herein petitioners filed their
opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods
in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as
shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental
opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967
seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of
Manila, and the determination of all questions affecting the disposal of property proceeded against in
seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January
30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges
due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios
Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the
goods.

On March 7, 1967, the respondent Judge issued an order releasing the goods to herein
respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March
13, 1967, said respondent filed the corresponding bond.

On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for
reconsideration of the order of the court releasing the goods under bond, upon the ground that the
Manila Police Department had been directed by the Collector of Customs of the Port of Manila to
hold the goods pending termination of the seizure proceedings.

403
 Without waiting for the court's action on the motion for reconsideration, and alleging that they
had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the
present action for prohibition and certiorari with preliminary injunction before this Court. In their
petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in
ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons:
(1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the
case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of
First Instance of Manila due to her failure to exhaust all administrative remedies before invoking
judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its
agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release
of the goods was grossly insufficient.

In due time, the respondents filed their answer to the petition for prohibition and certiorari in
this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of
the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue
the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long
before seizure, and identification proceedings against the nine bales of goods in question were
instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in
question after the corresponding duties and taxes had been paid and said goods had left the
customs premises and were no longer within the control of the Bureau of Customs; (3) that
respondent Remedios Mago was purchaser in good faith of the goods in question so that those
goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods
was affected by members of the Manila Police Department at a place outside control of jurisdiction of
the Bureau of Customs and affected without any search warrant or a warrant of seizure and
detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of
Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers
have no authority to seize the goods in question because they are not articles of prohibited
importation; (7) that petitioners are estopped to institute the present action because they had agreed
before the respondent Judge that they would not interpose any objection to the release of the goods
under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that
the bond for the release of the goods was sufficient.

The principal issue in the instant case is whether or not, the respondent Judge had acted with
jurisdiction in issuing the order of March 7, 1967 releasing the goods in question.

The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess
and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and
penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and
other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question
were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on
Informal Entry". 2 As long as the importation has not been terminated the imported goods remain
under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the
payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port
of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties,
taxes, fees and other charges must be in full. 4

The record shows, by comparing the articles and duties stated in the aforesaid "Statement and
Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor
General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject
of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of
Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a
comparison of the goods on which duties had been assessed, as shown in the "Statement and
Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in

404
the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared,
presumably to avoid the payment of duties thereon. For example, Annex B (the statement and
receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H
(the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens
and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were
assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch
bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320
dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief
were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2,
120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200
dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to
forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code.
And this Court has held that merchandise, the importation of which is effected contrary to law, is
subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8

Even if it be granted, arguendo, that after the goods in question had been brought out of the
customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said
goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police
Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been
formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained
jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon
the Collector of Customs the duty to hold possession of all imported articles upon which duties,
taxes, and other charges have not been paid or secured to be paid, and to dispose of the same
according to law. The goods in question, therefore, were under the custody and at the disposal of
the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496,
was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of
Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and
detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been
issued by the Collector of Customs.

The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-
24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De
Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of
Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported
and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an
inter-island vessel. When the goods where about to leave the customs premises in Manila, on
October 6, 1964, the customs authorities held them for further verification, and upon examination the
goods were found to be different from the declaration in the cargo manifest of the carrying vessel.
Francindy Commercial subsequently demanded from the customs authorities the release of the
goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was
involved so the Bureau of Customs had no right to examine the goods; and that the goods came
from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First
Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector
of Customs of the port of Manila to compel said customs authorities to release the goods.

Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had
no jurisdiction over the goods because the same were not imported to the port of Manila; that it was
not liable for duties and taxes because the transaction was not an original importation; that the
goods were not in the hands of the importer nor subject to importer's control, nor were the goods
imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had
been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of
seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs
and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the

405
petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending
seizure and forfeiture proceedings. The Court of First Instance held resolution on the motion to
dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First
Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy
Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of
Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their
motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered
them to comply with the preliminary and mandatory injunction, upon the filing by Francindy
Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this
Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In
resolving the question raised in that case, this Court held:

This petition raises two related issues: first, has the Customs bureau jurisdiction to
seize the goods and institute forfeiture proceedings against them? and (2) has the Court of
First Instance jurisdiction to entertain the petition for mandamus to compel the Customs
authorities to release the goods?

Francindy Commercial contends that since the petition in the Court of first Instance
was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure
and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of
the said court.

The record shows, however, that the goods in question were actually seized on
October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the
seizure by the Customs bureau was to verify whether or not Custom duties and taxes were
paid for their importation. Hence, on December 23, 1964, Customs released 22 bales
thereof, for the same were found to have been released regularly from the Cebu Port
(Petition Annex "L"). As to goods imported illegally or released irregularly from Customs
custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code
(RA 1957).

The Bureau of Customs has jurisdiction and power, among others to collect revenues
from imported articles, fines and penalties and suppress smuggling and other frauds on
customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957).

The goods in question are imported articles entered at the Port of Cebu. Should they
be found to have been released irregularly from Customs custody in Cebu City, they are
subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of
the Bureau of Customs pursuant to Republic Act 1937.

Said proceeding should be followed; the owner of the goods may set up defenses
therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of
Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act
1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the Court of First Instance in
cases of seizure of imported goods would in effect render ineffective the power of the
Customs authorities under the Tariff and Customs Code and deprive the Court of Tax
Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v.
Averia, supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture
proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such
law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First
Instance is a general legislation, not to mention that the former are later enactments, the
Court of First Instance should yield to the jurisdiction of the Customs authorities.

406
 It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over
imported goods, for the purposes of enforcement of the customs laws, from the moment the goods
are actually in its possession or control, even if no warrant of seizure or detention had previously
been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In
the present case, the Bureau of Customs actually seized the goods in question on November 4,
1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the
purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts.
Much less then would the Court of First Instance of Manila have jurisdiction over the goods in
question after the Collector of Customs had issued the warrant of seizure and detention on January
12, 1967. 10And so, it cannot be said, as respondents contend, that the issuance of said warrant was
only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case.
The court presided by respondent Judge did not acquire jurisdiction over the goods in question when
the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction.
Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila
had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods.

Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police
Department, could not seize the goods in question without a search warrant. This contention cannot
be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized
in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the
customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his duty to make seizure,
among others, of any cargo, articles or other movable property when the same may be subject to
forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and
examine any box, trunk, envelope or other container wherever found when he had reasonable cause
to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law;
and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of
holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner
Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods
in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer
to effect said search and seizure, and the latter has the legal duty to render said assistance. 14This
was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search
and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle.
He was given authority by the Chief of Police to make the interception of the cargo. 15

Petitioner Martin Alagao and his companion policemen had authority to effect the seizure
without any search warrant issued by a competent court. The Tariff and Customs Code does not
require said warrant in the instant case. The Code authorizes persons having police authority under
Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure,
warehouse, store or building, not being a dwelling house; and also to inspect, search and examine
any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and
search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without mentioning the need of a
search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said
"dwelling house may be entered and searched only upon warrant issued by a judge or justice of the
peace. . . ." 17 It is our considered view, therefor, that except in the case of the search of a dwelling
house, persons exercising police authority under the customs law may effect search and seizure
without a search warrant in the enforcement of customs laws.

Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799,
wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and
Customs Code, said as follows:

407
 Thus contemporaneously with the adoption of the 4th Amendment, we find in the first
Congress, and in the following second and fourth Congresses, a difference made as to the
necessity for a search warrant between goods subject to forfeiture, when concealed in a
dwelling house of similar place, and like goods in course of transportation and concealed in a
movable vessel, where readily they could be put out of reach of a search warrant. . . .

Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it
was made lawful for customs officers not only to board and search vessels within their own
and adjoining districts, but also to stop, search and examine any vehicle, beast or person on
which or whom they should suspect there was merchandise which was subject to duty, or
had been introduced into the United States in any manner contrary to law, whether by the
person in charge of the vehicle or beast or otherwise, and if they should find any goods,
wares, or merchandise thereon, which they had probably cause to believe had been so
unlawfully brought into the country, to seize and secure the same, and the vehicle or beast
as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap.
100), for a year and expired. The Act of February 28, 1865, revived § 2 of the Act of 1815,
above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted
in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter
embodied in the Revised Statutes as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed.
p. 1161. Neither § 3061 nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section was referred to and treated as operative by this court in
Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .

In the instant case, we note that petitioner Martin Alagao and his companion policemen did not
have to make any search before they seized the two trucks and their cargo. In their original petition,
and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege
that there was a search. 18 All that they complained of was,

That while the trucks were on their way, they were intercepted without any search
warrant near the Agrifina Circle and taken to the Manila Police Department, where they were
detained.

But even if there was a search, there is still authority to the effect that no search warrant would
be needed under the circumstances obtaining in the instant case. Thus, it has been held that:

The guaranty of freedom from unreasonable searches and seizures is construed as

recognizing a necessary difference between a search of a dwelling house or other structure
in respect of which a search warrant may readily be obtained and a search of a ship,
motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure
a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267
U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190
N.W., 389, 27 A.L.R., 686.)

In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question
raised by defendant's counsel was whether an automobile truck or an automobile could be searched
without search warrant or other process and the goods therein seized used afterwards as evidence
in a trial for violation of the prohibition laws of the State. Same counsel contended the negative,
urging the constitutional provision forbidding unreasonable searches and seizures. The Court said:

408
 . . . Neither our state nor the Federal Constitution directly prohibits search and seizure
without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is
forbidden. . . .

. . . The question whether a seizure or a search is unreasonable in the language of the

Constitution is a judicial and not a legislative question; but in determining whether a seizure
is or is not unreasonable, all of the circumstances under which it is made must be looked to.

The automobile is a swift and powerful vehicle of recent development, which has
multiplied by quantity production and taken possession of our highways in battalions until the
slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as
covered vehicles to standard form in immense quantities, and with a capacity for speed
rivaling express trains, they furnish for successful commission of crime a disguising means of
silent approach and swift escape unknown in the history of the world before their advent. The
question of their police control and reasonable search on highways or other public places is
a serious question far deeper and broader than their use in so-called "bootleging" or "rum
running," which is itself is no small matter. While a possession in the sense of private
ownership, they are but a vehicle constructed for travel and transportation on highways.
Their active use is not in homes or on private premises, the privacy of which the law
especially guards from search and seizure without process. The baffling extent to which they
are successfully utilized to facilitate commission of crime of all degrees, from those against
morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of
common knowledge. Upon that problem a condition, and not a theory, confronts proper
administration of our criminal laws. Whether search of and seizure from an automobile upon
a highway or other public place without a search warrant is unreasonable is in its final
analysis to be determined as a judicial question in view of all the circumstances under which
it is made.

Having declared that the seizure by the members of the Manila Police Department of the
goods in question was in accordance with law and by that seizure the Bureau of Customs had
acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff
laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal
and decisive issue in the present case. We do not consider it necessary, for the purposes of this
decision, to discuss the incidental issues raised by the parties in their pleadings.

WHEREFORE, judgment is hereby rendered, as follows:

(a) Granting the writ of certiorari and prohibition prayed for by petitioners;

(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent
Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First
Instance of Manila;

(c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967
restraining respondent Judge from executing, enforcing and/or implementing his order of March 7,
1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any
manner in said case;

(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila;
and 1äwphï1.ñët

(e) Ordering the private respondent, Remedios Mago, to pay the costs.

409
 It is so ordered.

G.R. No. 96177 January 27, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARI MUSA y HANTATALU, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo L. Murillo for accused-appellant.

ROMERO, J.:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31,
1990,1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling
marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known
as the Dangerous Drugs Act of 1972.

The information filed on December 15, 1989 against the appellant reads:

That on or about December 14, 1989, in the City of Zamboanga, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully,
unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing
dried marijuana leaves, knowing the same to be a prohibited drug.

CONTRARY TO LAW.2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th
Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust
operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command
of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena
Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of
Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court
as follows:

Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus
Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian,
Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on
a certain Mari Musa of Suterville, Zamboanga City. Information received from civilian
informer was that this Mari Musa was engaged in selling marijuana in said place. So
Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with
a NARCOM civilian informer, to the house of Mari Musa to which house the civilian
informer had guided him. The same civilian informer had also described to him the
appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped
dried marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and

410
turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga
inspected the stuff turned over to him and found it to be marijuana.

The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt.
Amado Ani was assigned as the poseur buyer for which purpose he was given
P20.00 (with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali
Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh.
"L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up security. A
pre-arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after
he had succeeded to buy the marijuana. The two NARCOM teams proceeded to the
target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga,
team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.

Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the
rest of the NARCOM group positioned themselves at strategic places about 90 to
100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on between
Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who
came out of his house, and asked Ani what he wanted. Ani said he wanted some
more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the
money, Mari Musa went back to his house and came back and gave Amado Ani two
newspaper wrappers containing dried marijuana. Ani opened the two wrappers and
inspected the contents. Convinced that the contents were marijuana, Ani walked
back towards his companions and raised his right hand. The two NARCOM teams,
riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and
returned to the house.

At the time Sgt. Ani first approached Mari Musa, there were four persons inside his
house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later
came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team
returned to Mari Musa's house, the woman, who was later known as Mari Musa's
wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find
the P20.00 marked money with him. Mari Musa was then asked where the P20.00
was and he told the NARCOM team he has given the money to his wife (who had
slipped away). Sgt. Belarga also found a plastic bag containing dried marijuana
inside it somewhere in the kitchen. Mari Musa was then placed under arrest and
brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the
two newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. "C"
& "D").

In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on,
Mari Musa gave his true name — Mari Musa. T/Sgt. Jesus Belarga turned over the
two newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-
wrapped marijuana (bought at the test-buy) and the plastic bag containing more
marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to
the PC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover
of the marijuana specimen to the PC Crime Laboratory was by way of a letter-
request, dated December 14, 1989 (Exh. "B"), which was stamped "RECEIVED" by
the PC Crime Laboratory (Exh. "B-1") on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory,
examined the marijuana specimens subjecting the same to her three tests. All

411
 submitted specimens she examined gave positive results for the presence of
marijuana. Mrs. Anderson reported the results of her examination in her Chemistry
Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and
"J-5"). Mrs. Anderson identified in court the two newspaper wrapped marijuana
bought at the
buy-bust on December 14, 1989, through her initial and the weight of each specimen
written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the
one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989,
through her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry
Report (Exh. "J" & sub-markings.)

T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through
his initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M."
(written on Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked
money (with SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature
thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to
the PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the
stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1").4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and
(2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:

[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house
at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara,
his one-year old child, a woman manicurist, and a male cousin named Abdul Musa.
About 1:30 that afternoon, while he was being manicured at one hand, his wife was
inside the one room of their house, putting their child to sleep. Three NARCOM
agents, who introduced themselves as NARCOM agents, dressed in civilian clothes,
got inside Mari Musa's house whose door was open. The NARCOM agents did not
ask permission to enter the house but simply announced that they were NARCOM
agents. The NARCOM agents searched Mari Musa's house and Mari Musa asked
them if they had a search warrant. The NARCOM agents were just silent. The
NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not
know. He also did not know if the plastic bag belonged to his brother, Faisal, who
was living with him, or his father, who was living in another house about ten arms-
length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the
NARCOM agents told him for clarification.

Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at
Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated
by one NARCOM agent which investigation was reduced into writing. The writing or
document was interpreted to Mari Musa in Tagalog. The document stated that the
marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari
Musa refused to sign because the marijuana did not belong to him. Mari Musa said
he was not told that he was entitled to the assistance of counsel, although he himself
told the NARCOM agents he wanted to be assisted by counsel.

Mari Musa said four bullets were then placed between the fingers of his right hand
and his fingers were pressed which felt very painful. The NARCOM agents boxed
him and Mari Musa lost consciousness. While Mari Musa was maltreated, he said his
wife was outside the NARCOM building. The very day he was arrested (on cross-

412
 examination Mari Musa said it was on the next day), Mari Musa was brought to the
Fiscal's Office by three NARCOM agents. The fiscal asked him if the marijuana was
owned by him and he said "not." After that single question, Mari Musa was brought to
the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by
the NARCOM agents because he was afraid he might be maltreated in the fiscal's
office.

Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of
marijuana to them; that he had received from them a P20.00 bill which he had given
to his wife. He did not sell marijuana because he was afraid that was against the law
and that the person selling marijuana was caught by the authorities; and he had a
wife and a very small child to support. Mari Musa said he had not been arrested for
selling marijuana before.5

After trial, the trial court rendered the assailed decision with the following disposition:

WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable

doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is
sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed
without subsidiary imprisonment.6

In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and
impugns the credibility of the prosecution witnesses.

The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1)
prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally
known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two
wrappers of marijuana by the appellant to Sgt. Ani.

Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he
conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana for
P15.00 from the latter.7 He reported the successful operation to T/Sgt. Belarga on the same
day.8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the
following day.9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt.
Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's
house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of
T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked
P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.

Upon reaching the place, the NARCOM agents positioned themselves at strategic places.11 Sgt. Ani
approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani
asked him for some more marijuana.12 Sgt. Ani gave him the marked P20.00 bill and the appellant
went inside the house and brought back two paper wrappers containing marijuana which he handed
to Sgt. Ani.13 From his position, Sgt. Ani could see that there were other people in the house.14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged
signal of raising his right hand.15 The NARCOM agents, accompanied by Sgt. Ani, went inside the
house and made the arrest. The agents searched the appellant and unable to find the marked
money, they asked him where it was. The appellant said that he gave it to his wife.16

413
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-
bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the
appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the
material points, it deserves credence.

The contention that the appellant could not have transacted with Sgt. Ani because they do not know
each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of
marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the
appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the
buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity
between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but
their agreement and the acts constituting the sale and delivery of the marijuana.17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the
appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the
commission of the crime of selling prohibited drugs has been held to be not crucial18 and the
presence of other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v. Paco,19 these factors may
sometimes camouflage the commission of the crime. In the instant case, the fact that the other
people inside the appellant's house are known to the appellant may have given him some assurance
that these people will not report him to the authorities.

The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga.
The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from
Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant
invokes People v.
Ale20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish
between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks.
And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the
uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.

People v. Ale does not apply here because the policeman in that case testified that he and his
companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer
based on the appearance of the cigarette sticks. The Court rejected this claim, stating that:

This Court cannot give full credit to the testimonies of the prosecution witnesses
marked as they are with contradictions and tainted with inaccuracies.

Biñan testified that they were able to tell that the four cigarettes were marijuana
cigarettes because according to him, the rolling of ordinary cigarettes are different
from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).

It is however, incredible to believe that they could discern the type of rolling done on
those cigarettes from the distance where they were observing the alleged sale of
more or less 10 to 15 meters.21

In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand
over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between
the two. The relevant portion of T/Sgt. Belarga's testimony reads:22

414
 Q Now, do you remember whether Sgt. Ani was able to reach the
house of Mari Musa?

A Yes, ma'am.

Q After reaching Mari Musa, did you see what happened (sic)?

A Yes, ma'am.

Q Could you please tell us?

A From our vehicle the stainless owner type jeep where Sgt. Lego,
Sgt. Biong were boarded, I saw that Sgt. Ani proceeded to the house
near the road and he was met by one person and later known as Mari
Musa who was at the time wearing short pants and later on I saw that
Sgt. Ani handed something to him, thereafter received by Mari Musa
and went inside the house and came back later and handed
something to Sgt. Ani.

Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen,
from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to
give to the former "something."

Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received
from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated
the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the
following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-
buy operation on the appellant at Suterville, Zamboanga City on December 13, 1989; 23 (2) later that
same day, Sgt. Ani went back to their office and reported a successful operation and turned over to
T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a
buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of
NARCOM agents who went to Suterville, Zamboanga City;26 (5) T/Sgt. Belarga gave a P20.00
marked bill to Sgt. Ani which was to be used in the buy-bust operation; 27 (6) upon the arrival of the
NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant
while some agents stayed in the vehicles and others positioned themselves in strategic places;28 the
appellant met Sgt. Ani and an exchange of articles took place.29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani.
Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-
buyer were unable to see exactly what the appellant gave the poseur-buyer because of their
distance or position will not be fatal to the prosecution's case30 provided there exists other evidence,
direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the
consummation of the sale of the prohibited drug

The appellant next assails the seizure and admission as evidence of a plastic bag containing
marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani
gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested the
appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon
being questioned, the appellant said that he gave the marked money to his wife.31 Thereafter, T/Sgt.
Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a
"cellophane colored white and stripe hanging at the corner of the kitchen."32 They asked the appellant
about its contents but failing to get a response, they opened it and found dried marijuana leaves. At

415
the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains
but the trial court issued an Order ruling that these are admissible in evidence.33

Built into the Constitution are guarantees on the freedom of every individual against unreasonable
searches and seizures by providing in Article III, Section 2, the following:

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 witness he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.

Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v.
Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom from
unreasonable searches and seizures.35

While a valid search warrant is generally necessary before a search and seizure may be effected,
exceptions to this rule are recognized. Thus, in Alvero v. Dizon,36 the Court stated that. "[t]he most
important exception to the necessity for a search warrant is the right of search and seizure as an
incident to a lawful arrest."37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure
incident to a lawful arrest, thus:

Sec. 12. Search incident to lawful arrest. — A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.

There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting
officer to make a search upon the person of the person arrested. As early as 1909, the Court has
ruled that "[a]n officer making an arrest may take from the person arrested any money or property
found upon his person which was used in the commission of the crime or was the fruit of the crime or
which might furnish the prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . . "38 Hence, in
a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the
marked money found on the person
of the pusher immediately after the arrest even without arrest and search warrants.39

In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in
his house but found nothing. They then searched the entire house and, in the kitchen, found and
seized a plastic bag hanging in a corner.

The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond
the person of the one arrested to include the premises or surroundings under his immediate
control.40 Objects in the "plain view" of an officer who has the right to be in the position to have that
view are subject to seizure and may be presented as evidence.41

In Ker v. California42 police officers, without securing a search warrant but having information that the
defendant husband was selling marijuana from his apartment, obtained from the building manager a
passkey to defendants' apartment, and entered it. There they found the defendant husband in the

416
living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying
himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon
which lay a brick-shaped package containing green leafy substance which he recognized as
marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation
of the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme
Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway
of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the
brick of marijuana did not constitute a search, since the officer merely saw what was placed before
him in full view.43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was
legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part
of the prosecution's evidence. 44

The "plain view" doctrine may not, however, be used to launch unbridled searches and
indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of
defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching
for evidence against the accused, but nonetheless inadvertently comes across an incriminating
object.45 Furthermore, the U.S. Supreme Court stated the following limitations on the application of
the doctrine:

What the "plain view" cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a
warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate
reason for being present unconnected with a search directed against the accused — and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the "plain view" doctrine
may not be used to extend a general exploratory search from one object to another until something
incriminating at last emerges.46

It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine
will not justify the seizure of the object where the incriminating nature of the object is not apparent
from the "plain view" of the object.47 Stated differently, it must be immediately apparent to the police
that the items that they observe may be evidence of a crime, contraband, or otherwise subject to
seizure.

In the instant case, the appellant was arrested and his person searched in the living room. Failing to
retrieve the marked money which they hoped to find, the NARCOM agents searched the whole
house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain
view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move
from one portion of the house to another before they sighted the plastic bag. Unlike Ker vs.
California, where the police officer had reason to walk to the doorway of the adjacent kitchen and
from which position he saw the marijuana, the NARCOM agents in this case went from room to room
with the obvious intention of fishing for more evidence.

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they
had no clue as to its contents. They had to ask the appellant what the bag contained. When the
appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California,
where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could
not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it.
Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it
was within their "plain view," what may be said to be the object in their "plain view" was just the
plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not

417
immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag
clearly betrayed its contents, whether by its distinctive configuration, its transprarency, or otherwise,
that its contents are obvious to an observer.48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not
apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in
evidence pursuant to Article III, Section 3(2) of the Constitution.

The exclusion of this particular evidence does not, however, diminish, in any way, the damaging
effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold
marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by
virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by
the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime
charged has been proved beyond reasonable doubt.

WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, appellee, vs. SANTIAGO

PERALTA y POLIDARIO (at large), ARMANDO DATUIN
JR. y GRANADOS (at large), ULYSSES GARCIA y TUPAS,
MIGUELITO DE LEON y LUCIANO, LIBRANDO FLORES y CRUZ
AND ANTONIO LOYOLA y SALISI, accused, ULYSSES
GARCIA Y TUPAS, MIGUELITO DE LEON y LUCIANO,
LIBRANDO FLORES y CRUZ AND ANTONIO
LOYOLA y SALISI, appellants.
DECISION
PANGANIBAN, J.:

The right of the accused to counsel demands effective, vigilant and

independent representation. The lawyers role cannot be reduced to being that
of a mere witness to the signing of an extra-judicial confession.

The Case

Before the Court is an appeal from the August 21, 2000 Decision of the [1]

Regional Trial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-
112322. Appellants Ulysses Garcia y Tupas, Miguelito de Leon y Luciano,
Librando Flores y Cruz and Antonio Loyola y Salisi, as well as their co-accused
-- Santiago Peralta y Polidario and Armando Datuin Jr. y Granados -- were

418
convicted therein of qualified theft. The dispositive portion of the Decision
reads:

WHEREFORE, the accused, Santiago Peralta y Polidario, Armando Datuin, Jr. y

Granados, Ulysses Garcia y Tupas, Miguelito De Leon y Luciano, Librando Flores y
Cruz and Antonio Loyola y Salisi, are hereby convicted of the crime of qualified theft
of P194,190.00 and sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law, and to pay the costs. Moreover, all the accused
are ordered to pay the Central Bank of the Philippines, now Bangko Sentral ng
Pilipinas, actual damages in the sum of P194,190.00 with interest thereon at the legal
rate from the date of the filing of this action, November 9, 1992, until fully paid.
[2]

In an Information dated November 9, 1992, appellants and their co-

[3]

accused were charged as follows:

That sometime in the year 1990 and including November 4, 1992, in the City of
Manila, Philippines, the said accused, conspiring and confederating with others whose
true names, identities and present whereabouts are still unknown and helping one
another, did then and there wilfully, unlawfully and feloniously, with intent to gain
and without the knowledge and consent of the owner thereof, take, steal and carry
away punctured currency notes due for shredding in the total amount of P194,190.00,
belonging to the Central Bank of the Philippines as represented by Pedro Labita y
Cabriga, to the damage and prejudice of the latter in the aforesaid sum of P194,190.00
Philippine currency;

That said accused Santiago Peralta y Polidario, Armando Datuin, Jr. y Granados,
Ulysses Garcia y Tupas, Miguelito de Leon y Luciano and Antonio Loyola y Salisi
committed said offense with grave abuse of confidence they being at the time
employed as Currency Reviewers, Driver, Currency Assistant I and Money Counter of
the offended party and as such they had free access to the property stolen.
[4]

Garcia was arrested on November 4, 1992; and his co-accused, on

November 9, 1992. Appellants, however, obtained two Release Orders from
RTC Vice Executive Judge Corona Ibay-Somera on November 9 and 10, 1992,
upon their filing of a cash bond to secure their appearance whenever required
by the trial court.
[5]

During their arraignment on May 4, 1993, appellants, assisted by their

respective counsels, pleaded not guilty. On September 30, 1998, the trial court
[6]

declared that Datuin Jr. and Peralta were at large, because they had failed to
appear in court despite notice. [7]

419
 After trial in due course, they were all found guilty and convicted of qualified
theft in the appealed Decision.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) presents the prosecutions version
of the facts as follows:

About 10:00 oclock in the morning of November 4, 1992, Pedro Labita of Central
Bank of the Philippines (CBP) [now Bangko Sentral ng Pilipinas (BSP)] went to the
Theft and Robbery Section of Western Police District Command (WPDC), and filed a
complaint for Qualified Theft against Santiago Peralta, Armando Datuin, Jr., Ulysses
Garcia, Miguelito de Leon, Librando Flores and Antonio S. Loyola.

Pedro Labita submitted to SPO4 Cielito Coronel, the investigating officer at WPDC,
punctured currency notes in P100.00 and P500.00 bills with a face value of
Php194,190.00. Said notes were allegedly recovered by the BSP Cash Department
during its cash counting of punctured currency bills submitted by different banks to
the latter. The punctured bills were rejected by the BSP money counter machine and
were later submitted to the investigation staff of the BSP Cash Department. As a
result of the investigation, it was determined that said rejected currency bills were
actually punctured notes already due for shredding. These currency bills were
punctured because they were no longer intended for circulation. Before these notes
could be shredded, they were stolen from the BSP by the above-named accused.

On the basis of the complaint filed by Pedro Labita, Ulysses Garcia was apprehended
in front of Golden Gate Subdivision, Las Pias City, while he was waiting for a
passenger bus on his way to the BSP. Garcia was brought to the police station for
investigation.

On November 4, 5 and 6, 1992, while in the custody of the police officers, Garcia
gave three separate statements admitting his guilt and participation in the crime
charged. He also identified the other named accused as his cohorts and accomplices
and narrated the participation of each and everyone of them.

On the basis of Garcias sworn statements, the other named accused were invited for
questioning at the police station and were subsequently charged with qualified theft
together with Garcia. (Citations omitted)
[8]

420
 Version of the Defense

The defense states its version of the facts in the following manner:

Accused-appellant Garcia served as a driver of the armored car of the Central Bank
from 1978 to 1994.

On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man who had identified
himself as a police officer arrested accused-appellant Garcia while waiting for a
passenger bus in front of the Golden Gate Subdivision, Las Pias City. He was arrested
without any warrant for his arrest. The police officer who had arrested accused-
appellant Garcia dragged the latter across the street and forced him to ride x x x a car.

While inside the car, he was blindfolded, his hands were handcuffed behind his back,
and he was made to bend with his chest touching his knees. Somebody from behind
hit him and he heard some of the occupants of the car say that he would be salvaged if
he would not tell the truth. When the occupants of the car mentioned perforated notes,
he told them that he does not know anything about those notes.

After the car had stopped, he was dragged out of the car and x x x up and down x x x
the stairs. While being dragged out of the car, he felt somebody frisk his pocket.

At a safe house, somebody mentioned to him the names of his co-accused and he told
them that he does not know his co-accused x x x. Whenever he would deny knowing
his co-accused, somebody would box him on his chest.Somebody poured water on
accused-appellant Garcias nose while lying on the bench. He was able to spit out the
water that had been poured on his nose [at first], but somebody covered his mouth. As
a result, he could not breath[e].

When accused-appellant Garcia realized that he could not bear the torture anymore, he
decided to cooperate with the police, and they stopped the water pouring and allowed
him to sit down.

Accused-appellant Garcia heard people talking and he heard somebody utter, may
nakikinig. Suddenly his two ears were hit with open palm[s] x x x. As he was being
brought down, he felt somebody return his personal belongings to his
pocket. Accused-appellant Garcias personal belongings consisted of [his] drivers
license, important papers and coin purse.

He was forced to ride x x x the car still with blindfold. His blindfold and handcuffs
were removed when he was at the office of police officer Dante Dimagmaliw at the
Western Police District, U.N. Avenue, Manila.
421
SPO4 Cielito Coronel asked accused-appellant Garcia about the latters name, age and
address. The arrival of Mr. Pedro Labita of the Cash Department, Central Bank of the
Philippines, interrupted the interview, and Mr. Labita instructed SPO4 Coronel to get
accused-appellant Garcias wallet and examine the contents thereof. SPO4 Coronel
supposedly found three pieces of P100 perforated bill in accused-appellant Garcias
wallet and the former insisted that they recovered the said perforated notes from
accused-appellants wallet. SPO4 Coronel took down the statement of Mr. Labita.

It was actually Mr. Labita, and not accused-appellant Garcia, who gave the answers
appearing in accused-appellant Garcias alleged three sworn statements dated
November 4, 1992, November 5, 1992 and x x x November 6, 1992.

At or about 6:00 p.m. on November 5, 1992, accused-appellant Garcia was brought to

the cell of the Theft and Robbery Section of the WPD. At or about 8:00 p.m., he was
brought to the office of Col. Alladin Dimagmaliw where his co-accused were also
inside. He did not identify his co-accused, but he merely placed his hands on the
shoulders of each of his co-accused, upon being requested, and Mr. Labita took x x
x pictures while he was doing the said act.

Accused-appellant Garcia came to know Atty. Francisco Sanchez of the Public

Attorneys Office on November 4, 1992, at the office of police officer Dante
Dimagmaliw, when SPO4 Coronel introduced Atty. Sanchez to accused-appellant
Garcia and told him that Atty. Sanchez would be his lawyer. However, accused-
appellant Garcia did not agree to have Atty. Sanchez to be his lawyer. Atty. Sanchez
left after talking to SPO4 Coronel, and accused-appellant Garcia had not met Atty.
Sanchez anymore since then. He was not present when Atty. Sanchez allegedly signed
x x x the alleged three (3) sworn statements.

During the hearing of the case on April 6, 2000, Atty. Sanchez manifested in open
court that he did not assist accused-appellant Garcia when the police investigated
accused-appellant Garcia, and that he signed x x x the three (3) sworn statements only
as a witness thereto.

Accused-appellant Garcia signed the alleged three sworn statements due to SPO4
Coronels warning that if he would not do so, he would again be tortured by water
cure.

SPO[4] Coronel caused the arrest without any warrant of accused appellants De Leon,
Loyola, [Flores] on the basis of the complaint of Mr. Pedro Labita, and which arrest
was effected on November 5, 1992, by SPO1 Alfredo Silva and SPO1 Redelico.

422
SPO4 Coronel, in his letter dated November 6, 1992, forwarded the case to the Duty
Inquest Prosecutor assigned at the WPDC Headquarters. (Citations omitted)
[9]

Ruling of the Trial Court

The trial court found that all the accused used to work for the BSP. Garcia
was a driver assigned to the Security and Transport Department; while Peralta,
Datuin Jr., De Leon, Flores and Loyola were laborers assigned to the Currency
Retirement Division. Their main task was to haul perforated currency notes from
the currency retirement vault to the basement of the BSP building for shredding.
On several occasions, during the period 1990-1992, they handed to Garcia
perforated currency notes placed in a coin sack that he, in turn, loaded in an
armored escort van and delivered to someone waiting outside the premises of
the building. The trial court held that the coordinated acts of all the accused
unerringly led to the conclusion that they had conspired to pilfer the perforated
currency notes belonging to the BSP.
The RTC rejected the disclaimer by Garcia of his own confessions, as such
disclaimer was an eleventh hour concoction to exculpate himself and his co-
accused. The trial court found his allegations of torture and coerced confessions
unsupported by evidence. Moreover, it held that the recovery of three pieces of
perforated P100 bills from Garcias wallet and the flight of Peralta and Datuin Jr.
were indicative of the guilt of the accused.
Hence, this appeal. [10]

Issues

In his Brief, Garcia raises the following issues:

1
The trial court erred in admitting in evidence the alleged three Sworn Statements of
Accused-appellant Garcia and the alleged three pieces of P100 perforated notes
2
The trial court erred in finding the accused-appellant guilty of qualified theft.[11]

In their joint Brief, De Leon, Loyola and Flores interpose this additional
assignment of errors:
1

423
 The trial court erred in admitting in evidence the alleged three sworn statements of
Accused Ulysses Garcia (Exhibits I, J and K) and the alleged three pieces of P100
perforated notes (Exhibits N to N-2) over the objections of the accused-appellants.
2
The trial court erred in denying the demurrer to evidence of Accused-appellants De
Leon, Loyola and Flores;
3
The trial court erred in denying the Motion for Reconsideration of the Order denying
the demurrer to evidence;
4
The trial court erred when it failed to consider the evidence adduced by the accused-
appellants, consisting of exhibits 1, 2 to 2-B, 3 and 4 and the testimony of their
witness, State Auditor Esmeralda Elli;
5
The trial court erred in finding the accused-appellants guilty of qualified theft.[12]
Simplified, the issues are as follows: (1) the sufficiency of the evidence
against appellants, including the admissibility of Garcias confessions and of the
three perforated P100 currency notes; and (2) the propriety of the denial of their
demurrer to evidence.

The Courts Ruling

The appeal has merit.

First Issue:
Sufficiency of Evidence

The trial court convicted appellants mainly on the strength of the three
confessions given by Garcia and the three perforated P100 currency notes
confiscated from him upon his arrest. Appellants, however, contend that these
pieces of evidence are inadmissible.

Extrajudicial Confessions

424
 Appellants aver that the alleged three Sworn Statements of Garcia were
obtained without the assistance of counsel in violation of his rights under Article
III, Section 12 (1) and (2) of the 1987 Constitution, which provides thus:

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, incomunicado, or other similar forms of detention are prohibited.

On the other hand, the OSG contends that counsel, Atty. Francisco
Sanchez III of the Public Attorneys Office, duly assisted Garcia during the
custodial investigation.
It is clear from a plain reading of the three extrajudicial confessions that [13]

Garcia was not assisted by Atty. Sanchez. The signature of the latter on those
documents was affixed after the word SAKSI. Moreover, he appeared in court
and categorically testified that he had not assisted Garcia when the latter was
investigated by the police, and that the former had signed the Sworn Statement
only as a witness. [14]

The written confessions, however, were still admitted in evidence by the

RTC on the ground that Garcia had expressed in writing his willingness and
readiness to give the Sworn Statements without the assistance of counsel. The
lower courts action is manifest error.
The right to counsel has been written into our Constitution in order to prevent
the use of duress and other undue influence in extracting confessions from a
suspect in a crime. The basic law specifically requires that any waiver of this
right must be made in writing and executed in the presence of a counsel. In
such case, counsel must not only ascertain that the confession is voluntarily
made and that the accused understands its nature and consequences, but also
advise and assist the accused continuously from the time the first question is
asked by the investigating officer until the signing of the confession.
Hence, the lawyers role cannot be reduced to being that of a mere witness
to the signing of a pre-prepared confession, even if it indicated compliance with
the constitutional rights of the accused. The accused is entitled to effective,
[15]

vigilant and independent counsel. [16]

425
 A waiver in writing, like that which the trial court relied upon in the present
case, is not enough. Without the assistance of a counsel, the waiver has no
evidentiary relevance. The Constitution states that [a]ny confession or
[17]

admission obtained in violation of [the aforecited Section 12] shall be

inadmissible in evidence x x x. Hence, the trial court was in error when it
admitted in evidence the uncounseled confessions of Garcia and convicted
appellants on the basis thereof. The question of whether he was tortured
becomes moot.

Perforated Currency Notes

Appellants contend that the three P100 perforated currency notes (Exhibits
N to N-2) allegedly confiscated from Garcia after his arrest were fruits of the
poisonous tree and, hence, inadmissible in evidence.
The solicitor general evades the issue and argues, instead, that appellants
waived the illegality of their arrest when they entered a plea. He further
contends that the exclusion from the evidence of the three punctured currency
bills would not alter the findings of the trial court.
The police arrested Garcia without a warrant, while he had merely been
waiting for a passenger bus after being pointed out by the Cash Department
personnel of the BSP. At the time of his arrest, he had not committed, was not
committing, and was not about to commit any crime. Neither was he acting in a
manner that would engender a reasonable ground to suspect that he was
committing a crime. None of the circumstances justifying an arrest without a
warrant under Section 5 of Rule 113 of the Rules of Court was present.
Hence, Garcia was not lawfully arrested. Nonetheless, not having raised the
matter before entering his plea, he is deemed to have waived the illegality of
his arrest. Note, however, that this waiver is limited to the arrest. It does not
extend to the search made as an incident thereto or to the subsequent seizure
of evidence allegedly found during the search.
The Constitution proscribes unreasonable searches and seizures of [18]

whatever nature. Without a judicial warrant, these are allowed only under the
following exceptional circumstances: (1) a search incident to a lawful arrest, (2)
seizure of evidence in plain view, (3) search of a moving motor vehicle, (4)
customs search, (5) stop and frisk situations, and (6) consented search. [19]

Where the arrest was incipiently illegal, it follows that the subsequent search
was similarly illegal. Any evidence obtained in violation of the constitutional
[20]

provision is legally inadmissible in evidence under the exclusionary rule. In the

[21]

426
present case, the perforated P100 currency notes were obtained as a result of
a search made without a warrant subsequent to an unlawful arrest; hence, they
are inadmissible in evidence.
Moreover, untenable is the solicitor generals argument that Appellants De
Leon, Flores and Loyola waived the illegality of the arrest and seizure when,
without raising objections thereto, they entered a plea of guilty. It was Garcia
who was unlawfully arrested and searched, not the aforementioned three
appellants. The legality of an arrest can be contested only by the party whose
rights have been impaired thereby.Objection to an unlawful search and seizure
is purely personal, and third parties cannot avail themselves of it.[22]

Indeed, the prosecution sufficiently proved the theft of the perforated

currency notes for retirement. It failed, however, to present sufficient admissible
evidence pointing to appellants as the authors of the crime.
The evidence presented by the prosecution shows that there were other
people who had similar access to the shredding machine area and the currency
retirement vault. Appellants were pinpointed by Labita because of an
[23]

anonymous phone call informing his superior of the people allegedly behind the
theft; and of the unexplained increase in their spending, which was incompatible
with their income. Labita, however, did not submit sufficient evidence to support
his allegation.
Without the extrajudicial confession and the perforated currency notes, the
remaining evidence would be utterly inadequate to overturn the constitutional
presumption of innocence.

Second Issue:
Demurrer to Evidence

Appellants contend that the trial court seriously erred when it denied the
demurrer to evidence filed by Appellants Loyola, De Leon and Flores. Not one
of the documents offered by the prosecution and admitted in evidence by the
RTC established the alleged qualified theft of perforated notes, and not one of
the pieces of evidence showed appellants participation in the commission of the
crime.
On the exercise of sound judicial discretion rests the trial judges
determination of the sufficiency or the insufficiency of the evidence presented
by the prosecution to establish a prima facie case against the accused. Unless
there is a grave abuse of discretion amounting to lack of jurisdiction, the trial
courts denial of a motion to dismiss may not be disturbed. [24]

427
 As discussed earlier, the inadmissibility of the confessions of Garcia did not
become apparent until after Atty. Francisco had testified in court. Even if the
confiscated perforated notes from the person of the former were held to be
inadmissible, the confessions would still have constituted prima facie evidence
of the guilt of appellants. On that basis, the trial court did not abuse its discretion
in denying their demurrer to evidence.
WHEREFORE, the assailed Decision is REVERSED and SET
ASIDE. Appellants are hereby ACQUITTED and ordered
immediately RELEASED, unless they are being detained for any other lawful
cause.The director of the Bureau of Corrections is hereby directed to submit his
report on the release of the appellant or the reason for his continued detention
within five (5) days from notice of this Decision. No costs.
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.

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.

428
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.

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

429
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 however reasonably 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.

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

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

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral
damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition
to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which
the civil case was based was culled from a tape recording of the confrontation made by
petitioner.2 The transcript reads as follows:

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

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo,

nakalimot ka na kung paano ka napunta rito, porke member ka na,
magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

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

sabing ganoon —

430
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain
ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok.
Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka
sa review mo, kung kakailanganin ang certification mo, kalimutan mo
na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko

up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito

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

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

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

ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel,

kung on your own merit alam ko naman kung gaano ka "ka bobo" mo.
Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

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

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang

utak. Akala mo ba makukuha ka dito kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka

kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-
anak ng nanay at tatay mo ang mga magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa

labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis
ka doon.

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

431
 ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka
makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang
sa akin, dahil tapos ka na.

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

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa

no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa

'yo. Lumabas ka na. Magsumbong ka.3

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

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of

Republic Act No. 4200, committed as follows:

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

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M.
CUNETA
Asst. City Fiscal

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

432
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this
Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division)
of June 19, 1989.

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

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A.

4200. In thus quashing the information based on the ground that the facts alleged do
not constitute an offense, the respondent judge acted in grave abuse of discretion
correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent
Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of
Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the
conversation. She contends that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication.8 In relation to this, petitioner
avers that the substance or content of the conversation must be alleged in the Information, otherwise
the facts charged would not constitute a violation of R.A. 4200.9 Finally, petitioner agues that R.A.
4200 penalizes the taping of a "private communication," not a "private conversation" and that
consequently, her act of secretly taping her conversation with private respondent was not illegal
under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language
of a statute is clear and unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation would be either impossible 11 or
absurb or would lead to an injustice. 12

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

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to
any private communication or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise
described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by
all the parties to any private communication to secretly record such communication by means of a
tape recorder. The law makes no distinction as to whether the party sought to be penalized by the
statute ought to be a party other than or different from those involved in the private communication.
The statute's intent to penalize all persons unauthorized to make such recording is underscored by
the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded,
"even a (person) privy to a communication who records his private conversation with another without
the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.

433
A perusal of the Senate Congressional Records, moreover, supports the respondent court's
conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal,
unauthorized tape recording of private conversations or communications taken either by the parties
themselves or by third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy

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

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

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

Senator Tañada: That is right. This is a complete ban on tape recorded

conversations taken without the authorization of all the parties.

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

Senator Tañada: I believe it is reasonable because it is not sporting to record the

observation of one without his knowing it and then using it against him. It is not fair, it
is not sportsmanlike. If the purpose; Your honor, is to record the intention of the
parties. I believe that all the parties should know that the observations are being
recorded.

Senator Padilla: This might reduce the utility of recorders.

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

Senator Padilla: Now, I can understand.

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

434
 him knowing that it is being taped or recorded, without him knowing that what is
being recorded may be used against him, I think it is unfair.

xxx xxx xxx

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

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

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the usual nature

435
 of conversations as well the undeniable fact that most, if not all, civilized people have
some aspects of their lives they do not wish to expose. Free conversationsare often
characterized by exaggerations, obscenity, agreeable falsehoods, and the
expression of anti-social desires of views not intended to be taken seriously. The
right to the privacy of communication, among others, has expressly been assured by
our Constitution. Needless to state here, the framers of our Constitution must have
recognized the nature of conversations between individuals and the significance of
man's spiritual nature, of his feelings and of his intellect. They must have known that
part of the pleasures and satisfactions of life are to be found in the unaudited, and
free exchange of communication between individuals — free from every unjustifiable
intrusion by whatever means.17

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

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

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
respondents clinic without the latters 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 respondents
secretary, forcibly opened the drawers and cabinet in her husbands clinic and
took 157 documents consisting of private correspondence between Dr. Martin
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr.
Martins 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.

436
 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 plaintiffs Complaint or those
further described in the Motion to Return and Suppress and ordering Cecilia
Zulueta and any person acting in her behalf to immediately return the properties
to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as
moral damages and attorneys 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 courts decision, petitioners only ground is
that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents
and papers (marked as Annexes A-i to J-7 of respondents comment in that
case) were admissible in evidence and, therefore, their use by petitioners
attorney, Alfonso Felix, Jr., 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 respondents complaint.
Petitioners 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:
xxx xxx xxx

437
4. When respondent refiled Cecilias 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-I 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 Courts order, respondents 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
petitioners 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, petitioners 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 husbands 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. Martins 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 courts 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] inviolable3 is no less applicable simply because it is the
wife (who thinks herself aggrieved by her husbands 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

438
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.7But 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.
FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the
PEOPLE OF THE PHILIPPINES, respondents.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated
December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena
City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of
homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14)
years, eight (8) months, and one (1) day of reclusion temporal, as maximum, but increased the
death indemnity awarded to the heirs of the victim, Enrique Ike Lingan, from P30,000.00
to P50,000.00.
The information against petitioner alleged

That on or about the 4th day of February, 1990, in the nighttime, in the City of
Lucena, Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, being then a member of the Lucena Integrated
National Police, with intent to kill, did then and there willfully, unlawfully and
feloniously assault one Ike Lingan inside the Lucena police headquarters, where
authorities are supposed to be engaged in the discharge of their duties, by boxing the

439
said Ike Lingan in the head with the butt of a gun and thereafter when the said victim
fell, by banging his head against the concrete pavement, as a consequence of which
said Ike Lingan suffered cerebral concussion and shock which directly caused his
death.

The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena
and Enrique Ike Lingan, who were reporters of the radio station DWTI in Lucena City, together
with one Mario Ilagan, went to the Entertainment City following reports that it was showing nude
dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer
appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena
brought out his camera and took a picture.[2]
At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached
Jalbuena and demanded to know why he took a picture.[3] Jalbuena replied: Wala kang pakialam,
because this is my job.[4] Sioco pushed Jalbuena towards the table as he warned the latter that he
would kill him.[5] When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the
joint followed by his companions.[6]
Jalbuena and his companions went to the police station to report the matter. Three of the
policemen on duty, including petitioner Navarro, were having drinks in front of the police station,
and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk
officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a
motorcycle.[7]
Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around
fifteen minutes.[8] Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall,
said to him: Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba
kilala?[9] Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face
of Jalbuena, said, Ano, uutasin na kita?[10]
At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan,
pumarito kami para magpa-blotter, I am here to mediate.[11] Petitioner Navarro replied: Walang
press, press, mag-sampu pa kayo.[12] He then turned to Sgt. Aonuevo and told him to make of
record the behavior of Jalbuena and Lingan.[13]
This angered Lingan, who said: O, di ilagay mo diyan.[14] Petitioner Navarro
retorted: Talagang ilalagay ko.[15] The two then had a heated exchange.[16] Finally, Lingan
said: Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo.[17] Petitioner
Navarro replied: Ah, ganoon?[18]
As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol
above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up,
but petitioner Navarro gave him a fist blow on the forehead which floored him.[19]
Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike
Lingan ang naghamon.[20] He said to Sgt. Aonuevo: Ilagay mo diyan sa blotter, sa harap ni Alex
Sioco at Dante Liquin, na si Ike Lingan ang naghamon.[21] He then poked his gun at the right temple
of Jalbuena and made him sign his name on the blotter.[22] Jalbuena could not affix his
signature. His right hand was trembling and he simply wrote his name in print.[23]

440
 Capt. Coronado, the station commander, called petitioner Navarro to his office, while a
policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy
Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But
Lingan died from his injuries.[24]
Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between
petitioner and the deceased.[25] The following is an excerpt from the tape recording:
Lingan: Pare, you are abusing yourself.
Navarro: Who is that abusing?
Lingan: Im here to mediate. Do not include me in the problem. Im out of the problem.
....
Navarro: Wala sa akin yan. Ang kaso lang . . . .
Lingan: Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I
just came here to ayusin things. Do not say bad things against me. Im the number one loko sa
media. Im the best media man. . . .
Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong
sabihing loko ka!
Lingan: Im brave also.
Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-
tatrabaho lang ako ng ayon sa serbisyo ko.
Lingan: You are challenging me and him. . . .
Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong
maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh.
Lingan: Pati ako kalaban ninyo.
Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!
Lingan: You are wrong. Bakit kalaban nyo ang press?
Navarro: Pulis ito! Aba!
Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.
Navarro: Mayabang ka ah!
(Sounds of a scuffle)
Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko
daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni
Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa
harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako
nyan. Sige, dalhin nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he
(petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice,
each time hitting his head on the concrete.[26]

441
 In giving credence to the evidence for the prosecution, the trial court stated:

After a thorough and in-depth evaluation of the evidence adduced by the prosecution
and the defense, this court finds that the evidence for the prosecution is the more
credible, concrete and sufficient to create that moral certainty in the mind of the court
that accused herein is criminally responsible.

The defenses evidence which consists of outright denial could not under the
circumstance overturn the strength of the prosecutions evidence.

This court finds that the prosecution witnesses, more particularly Stanley Jalbuena,
lacked any motive to make false accusation, distort the truth, testify falsehood or
cause accusation of one who had neither brought him harm or injury.

Going over the evidence on record, the postmortem report issued by Dra. Eva
Yamamoto confirms the detailed account given by Stanley Jalbuena on how Lingan
sustained head injuries.

Said post-mortem report together with the testimony of Jalbuena sufficiently belie the
claim of the defense that the head injuries of deceased Lingan were caused by the
latters falling down on the concrete pavement head first.

The Court of Appeals affirmed:

We are far from being convinced by appellants aforesaid disquisition. We have

carefully evaluated the conflicting versions of the incident as presented by both
parties, and we find the trial courts factual conclusions to have better and stronger
evidentiary support.

In the first place, the mere fact that Jalbuena was himself a victim of appellants
aggression does not impair the probative worth of his positive and logical account of
the incident in question. In fact, far from proving his innocence, appellants
unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly
betrays his violent character or disposition and his capacity to harm
others. Apparently, the same motivation that led him into assailing Jalbuena must
have provoked him into also attacking Lingan who had interceded for Jalbuena and
humiliated him and further challenged him to a fist fight.

....

On the other hand, appellants explanation as to how Lingan was injured is too tenuous
and illogical to be accepted. It is in fact contradicted by the number, nature and

442
location of Lingans injuries as shown in the post-mortem report (Exh. D). According
to the defense, Lingan fell two times when he was outbalanced in the course of boxing
the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left
eyebrow, between his left and right eyebrows, and contusion in the right temporal
region of the head (Exh. E). Certainly, these injuries could not have resulted from
Lingans accidental fall.

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN

ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON
SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS
MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED
GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A
MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY
EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN
THE RECORD.

The appeal is without merit.

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground
that he was a biased witness, having a grudge against him. The testimony of a witness who has an
interest in the conviction of the accused is not, for this reason alone, unreliable.[27] Trial courts,
which have the opportunity to observe the facial expressions, gestures, and tones of voice of a
witness while testifying, are competent to determine whether his or her testimony should be given
credence.[28] In the instant case, petitioner Navarro has not shown that the trial court erred in
according weight to the testimony of Jalbuena.
Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked
whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer
is in the affirmative. The law provides:

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 also be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceding sentence, to knowingly possess any tape record, wire
record, disc record, or any other such record, or copies thereof, of any communication
or spoken word secured either before or after the effective date of this Act in the

443
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.

....

SEC. 4. Any communication or spoken word, or the existence, contents, substance,

purport, effect, or meaning of the same or any part thereof, or any information therein
contained obtained or secured by any person in violation of the preceding sections of
this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative
or administrative hearing or investigation.

Thus, the law prohibits the overhearing, intercepting, or recording of private

communications.[29] Since the exchange between petitioner Navarro and Lingan was not private,
its tape recording is not prohibited.
Nor is there any question that it was duly authenticated. A voice recording is authenticated by
the testimony of a witness (1) that he personally recorded the conversation; (2) that the tape played
in court was the one he recorded; and (3) that the voices on the tape are those of the persons such
are claimed to belong.[30] In the instant case, Jalbuena testified that he personally made the voice
recording;[31] that the tape played in court was the one he recorded;[32]and that the speakers on the
tape were petitioner Navarro and Lingan.[33] A sufficient foundation was thus laid for the
authentication of the tape presented by the prosecution.
Second. The voice recording made by Jalbuena established: (1) that there was a heated
exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry
against him and Jalbuena; and (2) that some form of violence occurred involving petitioner
Navarro and Lingan, with the latter getting the worst of it.
Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued
a medical certificate,[34] dated February 5, 1990, containing the following findings:

Post Mortem Findings:

= Dried blood, forehead & face

= No blood oozed from the ears, nose & mouth

= Swelling, 3 cm x 2 cm, temporal region, head, right

= Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left

= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow
444
= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes

CAUSE OF DEATH:

= CEREBRAL CONCUSSION & SHOCK

= BLOW ON THE HEAD

Dr. Yamamoto testified:

Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of
blood from the forehead?
A It may be due to a blow on the forehead or it bumped to a hard object, sir.
Q Could a metal like a butt of a gun have caused this wound No. 1?
A It is possible, sir.
Q And in the alternative, could have it been caused by bumping on a concrete floor?
A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under your findings No. 2 doctor?
WITNESS:
It may be caused by bumping to a hard object, sir.
Q Could a butt of a gun have caused it doctor?
A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is
small, sir.
Q How about this findings No. 4?
A By a bump or contact of the body to a hard object, sir.
Q And findings No. 5 what could have caused it?
A Same cause, sir.
Q This findings No. 6 what could have caused this wound?
A Same thing, sir.
Q How about this last finding, cyanosis of tips of fingers and toes, what could have caused it doctor?
WITNESS:
It indicates there was cardiac failure, sir.
FISCAL:

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 In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral
concussion and Shock, will you explain it?
A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.
Q What about the shock, what could have caused it?
A It was due to peripheral circulatory failure, sir.
Q Could any one of both caused the death of the victim?
A Yes, sir.
Q Could cerebral concussion alone have caused the death of the deceased?
A May be, sir.
Q How about shock?
A Yes, sir.
FISCAL:
Which of these two more likely to cause death?
WITNESS:
Shock, sir.
Q Please explain further the meaning of the medical term shock?
A It is caused by peripheral circulatory failure as I have said earlier, sir.
....
FISCAL:
Could a bumping or pushing of ones head against a concrete floor have caused shock?
WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir.[35]
The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan
with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist.
Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the
part of the offended party immediately preceding the act should have been appreciated in favor of
petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the
offended party, capable of exciting, inciting, or irritating anyone.[36] The provocation must be
sufficient and should immediately precede the act.[37] People v. Paga, 79 SCRA 570 (1977).37 To
be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly
be proportionate in gravity.[38] And it must immediately precede the act so much so that there is no

446
interval between the provocation by the offended party and the commission of the crime by the
accused.[39]
In the present case, the remarks of Lingan, which immediately preceded the act of petitioner,
constituted sufficient provocation. In People v. Macaso,[40] we appreciated this mitigating
circumstance in favor of the accused, a policeman, who shot a motorist after the latter had
repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be
considered in favor of petitioner Navarro.
Furthermore, the mitigating circumstance that the offender had no intention to commit so
grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic
exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows
that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into
account in determining the penalty that should be imposed on petitioner Navarro. The allowance
of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred
by any person committing a felony although the wrongful act done be different from that which
he intended.[41] In People v. Castro,[42] the mitigating circumstance of lack of intent to commit so
grave a wrong as that committed was appreciated in favor of the accused while finding him guilty
of homicide.
However, the aggravating circumstance of commission of a crime in a place where the public
authorities are engaged in the discharge of their duties should be appreciated against petitioner
Navarro. The offense in this case was committed right in the police station where policemen were
discharging their public functions.[43]
The crime committed as found by the trial court and the Court of Appeals was homicide, for
which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were
two mitigating circumstances and one aggravating circumstance, the penalty should be fixed in its
minimum period.[44] Applying the Indeterminate Sentence Law, petitioner Navarro should be
sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty
next lower in degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its
minimum period.[45]
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in
accordance with current jurisprudence.[46]
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification
that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison term of 8 years of prision
mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum.

G.R. No. 127685 July 23, 1998

BLAS F. OPLE, petitioner,

vs.

RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO,

ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS
P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE
COMMISSION ON AUDIT, respondents.

447
PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the
shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as "the most
comprehensive of rights and the right most valued by civilized men." 1 Petitioner Ople prays that
we invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized
Identification Reference System" on two important constitutional grounds, viz: one, it is a
usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our
citizenry's protected zone of privacy. We grant the petition for the rights sought to be
vindicated by the petitioner need stronger barriers against further erosion.

A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as
follows:

ADOPTION OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents

with the facility to conveniently transact business with basic service and social
security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently

identify persons seeking basic services on social security and reduce, if not
totally eradicate fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic

services and social security providing agencies and other government
intrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:

Sec. 1. Establishment of a National Compoterized Identification Reference

System. A decentralized Identification Reference System among the key basic
services and social security providers is hereby established.

Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating

Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government

448
 Secretary, Department of Health

Administrator, Government Service Insurance System,

Administrator, Social Security System,

Administrator, National Statistics Office

Managing Director, National Computer Center.

Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated

as secretariat to the IACC and as such shall provide administrative and
technical support to the IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN)

generated by the NSO shall serve as the common reference number to
establish a linkage among concerned agencies. The IACC Secretariat shall
coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in computer
application designs of their respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office of the

Press Secretary, in coordination with the National Statistics Office, the GSIS
and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social
Security Identification Reference.

Sec. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.

Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit
regular reports to the Office of the President through the IACC, on the status of
implementation of this undertaking.

Sec. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997
and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against
respondents, then Executive Secretary Ruben Torres and the heads of the government
agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the
implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.

Petitioner contends:

449
 A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF
A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE

IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION
OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION. 2

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD

WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING
ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE

IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. 3

We now resolve.

As is usual in constitutional litigation, respondents raise the threshold issues relating to the
standing to sue of the petitioner and the justiciability of the case at bar. More specifically,
respondents aver that petitioner has no legal interest to uphold and that the implementing
rules of A.O. No. 308 have yet to be promulgated.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished
member of our Senate. As a Senator, petitioner is possessed of the requisite standing to
bring suit raising the issue that the issuance of A.O. No. 308 is a usurpation of legislative
power. 4 As taxpayer and member of the Government Service Insurance System (GSIS),
petitioner can also impugn the legality of the misalignment of public funds and the misuse of
GSIS funds to implement A.O. No. 308. 5

The ripeness for adjudication of the Petition at bar is not affected by the fact that the
implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O.
No. 308 as invalid per se and as infirmed on its face. His action is not premature for the rules
yet to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves
have started the implementation of A.O. No. 308 without waiting for the rules. As early as

450
January 19, 1997, respondent Social Security System (SSS) caused the publication of a
notice to bid for the manufacture of the National Identification (ID) card. 6 Respondent
Executive Secretary Torres has publicly announced that representatives from the GSIS and
the SSS have completed the guidelines for the national identification system. 7 All signals
from the respondents show their unswerving will to implement A.O. No. 308 and we need not
wait for the formality of the rules to pass judgment on its constitutionality. In this light, the
dissenters insistence that we tighten the rule on standing is not a commendable stance as its
result would be to throttle an important constitutional principle and a fundamental right.

II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere
administrative order but a law and hence, beyond the power of the President to issue. He
alleges that A.O. No. 308 establishes a system of identification that is all-encompassing in
scope, affects the life and liberty of every Filipino citizen and foreign resident, and more
particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of
Congress is understandable. The blurring of the demarcation line between the power of the
Legislature to make laws and the power of the Executive to execute laws will disturb their
delicate balance of power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by this Court.

The line that delineates Legislative and Executive power is not indistinct. Legislative power is
"the authority, under the Constitution, to make laws, and to alter and repeal them." 8 The
Constitution, as the will of the people in their original, sovereign and unlimited capacity, has
vested this power in the Congress of the Philippines. 9 The grant of legislative power to
Congress is broad, general and comprehensive. 10 The legislative body possesses plenary
power for all purposes of civil government. 11 Any power, deemed to be legislative by usage
and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere. 12 In fine, except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters of general concern or
common interest. 13

While Congress is vested with the power to enact laws, the President executes the
laws. 14 The executive power is vested in the Presidents. 15 It is generally defined as the power
to enforce and administer the laws. 16 It is the power of carrying the laws into practical
operation and enforcing their due observance. 17

As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and
employees of his department. 18 He has control over the executive department, bureaus and
offices. This means that he has the authority to assume directly the functions of the
executive department, bureau and office or interfere with the discretion of its
officials.19 Corollary to the power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order. Thus, he is
granted administrative power over bureaus and offices under his control to enable him to
discharge his duties effectively. 20

Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. 21 It enables the President to fix a uniform

451
standard of administrative efficiency and check the official conduct of his agents. 22 To this
end, he can issue administrative orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative order. An administrative order is:

Sec. 3. Administrative Orders. — Acts of the President which relate to

particular aspects of governmental operation in pursuance of his duties as
administrative head shall be promulgated in administrative orders. 23

An administrative order is an ordinance issued by the President which relates to

specific aspects in the administrative operation of government. It must be in harmony
with the law and should be for the sole purpose of implementing the law and carrying
out the legislative policy. 24 We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and procedural
principles of governance." 25 and "embodies changes in administrative structure and
procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty
and General Administration, Book II with the Distribution of Powers of the three
branches of Government, Book III on the Office of the President, Book IV on the
Executive Branch, Book V on Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative Procedure. These Books
contain provisions on the organization, powers and general administration of the
executive, legislative and judicial branches of government, the organization and
administration of departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and other
constitutional bodies, the rules on the national government budget, as well as
guideline for the exercise by administrative agencies of quasi-legislative and quasi-
judicial powers. The Code covers both the internal administration of
government, i.e, internal organization, personnel and recruitment, supervision and
discipline, and the effects of the functions performed by administrative officials on
private individuals or parties outside government. 27

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative
Code of 1987. It establishes for the first time a National Computerized Identification
Reference System. Such a System requires a delicate adjustment of various contending state
policies — the primacy of national security, the extent of privacy interest against dossier-
gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said
administrative order redefines the parameters of some basic rights of our citizenry vis-a-
vis the State as well as the line that separates the administrative power of the President to
make rules and the legislative power of Congress, it ought to be evident that it deals with a
subject that should be covered by law.

Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers
no right, imposes no duty, affords no proctection, and creates no office. Under A.O. No. 308,
a citizen cannot transact business with government agencies delivering basic services to the
people without the contemplated identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with government. It is thus clear as daylight
that without the ID, a citizen will have difficulty exercising his rights and enjoying his

452
privileges. Given this reality, the contention that A.O. No. 308 gives no right and imposes no
duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of administrative
legislation and consequently erodes the plenary power of Congress to make laws. This is
contrary to the established approach defining the traditional limits of administrative
legislation. As well stated by Fisher: ". . . Many regulations however, bear directly on the
public. It is here that administrative legislation must he restricted in its scope and
application. Regulations are not supposed to be a substitute for the general policy-making
that Congress enacts in the form of a public law. Although administrative regulations are
entitled to respect, the authority to prescribe rules and regulations is not an independent
source of power to make laws." 28

III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass
constitutional muster as an administrative legislation because facially it violates the right to
privacy. The essence of privacy is the "right to be let alone." 29 In the 1965 case of Griswold v.
Connecticut, 30 the United States Supreme Court gave more substance to the right of privacy
when it ruled that the right has a constitutional foundation. It held that there is a right of
privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth
Amendments, 31 viz:

Specific guarantees in the Bill of Rights have penumbras formed by

emanations from these guarantees that help give them life and substance . . .
various guarantees create zones of privacy. The right of association contained
in the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers "in any house"
in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the ''right of the people to be
secure in their persons, houses and effects, against unreasonable searches
and seizures." The Fifth Amendment in its Self-Incrimination Clause enables
the citizen to create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: "The enumeration
in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."

In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique
Fernando, we held:

xxx xxx xxx

The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offence on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully
it stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully

453
 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. Ultimate 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 modern society has developed. All the forces of a 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."

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and
enshrined in several provisions of our Constitution. 33 It is expressly recognized in section 3
(1) of the Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.

Other facets of the right to privacy are protectad in various provisions of the Bill of
Rights, viz: 34

Sec. 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the
laws.

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 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.

xxx xxx xxx

Sec. 6. 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.

xxx xxx xxx

Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.

454
 Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides
that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons" and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. 35 It also holds a public officer or employee
or any private individual liable for damages for any violation of the rights and liberties of
another person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the violation of secrets by an
officer, 38the revelation of trade and industrial secrets, 39 and trespass to dwelling. 40 Invasion
of privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank
Deposits Act 42 and the Intellectual Property Code. 43 The Rules of Court on privileged
communication likewise recognize the privacy of certain information. 44

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental
right guaranteed by the Constitution, hence, it is the burden of government to show that A.O.
No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No.
308 is predicated on two considerations: (1) the need to provides our citizens and foreigners
with the facility to conveniently transact business with basic service and social security
providers and other government instrumentalities and (2) the need to reduce, if not totally
eradicate, fraudulent transactions and misrepresentations by persons seeking basic
services. It is debatable whether these interests are compelling enough to warrant the
issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the
overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in
clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference
Number (PRN) as a "common reference number to establish a linkage among concerned
agencies" through the use of "Biometrics Technology" and "computer application designs."

Biometry or biometrics is "the science of the applicatin of statistical methods to biological

facts; a mathematical analysis of biological data." 45 The term "biometrics" has evolved into a
broad category of technologies which provide precise confirmation of an individual's identity
through the use of the individual's own physiological and behavioral characteristics. 46 A
physiological characteristic is a relatively stable physical characteristic such as a fingerprint,
retinal scan, hand geometry or facial features. A behavioral characteristic is influenced by the
individual's personality and includes voice print, signature and keystroke. 47 Most biometric
idenfication systems use a card or personal identificatin number (PIN) for initial identification.
The biometric measurement is used to verify that the individual holding the card or entering
the PIN is the legitimate owner of the card or PIN. 48

A most common form of biological encoding is finger-scanning where technology scans a

fingertip and turns the unique pattern therein into an individual number which is called a
biocrypt. The biocrypt is stored in computer data banks 49 and becomes a means of
identifying an individual using a service. This technology requires one's fingertip to be
scanned every time service or access is provided. 50 Another method is the retinal scan.
Retinal scan technology employs optical technology to map the capillary pattern of the retina
of the eye. This technology produces a unique print similar to a finger print. 51 Another
biometric method is known as the "artificial nose." This device chemically analyzes the
unique combination of substances excreted from the skin of people. 52 The latest on the list of
biometric achievements is the thermogram. Scientists have found that by taking pictures of a
face using infra-red cameras, a unique heat distribution pattern is seen. The different

455
densities of bone, skin, fat and blood vessels all contribute to the individual's personal "heat
signature." 53

In the last few decades, technology has progressed at a galloping rate. Some science fictions
are now science facts. Today, biometrics is no longer limited to the use of fingerprint to
identify an individual. It is a new science that uses various technologies in encoding any and
all biological characteristics of an individual for identification. It is noteworthy that A.O. No.
308 does not state what specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its coverage. Considering the
banquest of options available to the implementors of A.O. No. 308, the fear that it threatens
the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state
whether encoding of data is limited to biological information alone for identification
purposes. In fact, the Solicitor General claims that the adoption of the Identification
Reference System will contribute to the "generation of population data for development
planning." 54 This is an admission that the PRN will not be used solely for identification but
the generation of other data with remote relation to the avowed purposes of A.O. No. 308.
Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to
store and retrieve information for a purpose other than the identification of the individual
through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed
as the dissenters do. Pursuant to said administrative order, an individual must present his
PRN everytime he deals with a government agency to avail of basic services and security. His
transactions with the government agency will necessarily be recorded — whether it be in the
computer or in the documentary file of the agency. The individual's file may include his
transactions for loan availments, income tax returns, statement of assets and liabilities,
reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN,
the better the chance of building a huge formidable informatin base through the electronic
linkage of the files. 55 The data may be gathered for gainful and useful government purposes;
but the existence of this vast reservoir of personal information constitutes a covert invitation
to misuse, a temptation that may be too great for some of our authorities to resist. 56

We can even grant, arguendo, that the computer data file will be limited to the name, address
and other basic personal infomation about the individual. 57 Even that hospitable assumption
will not save A.O. No. 308 from constitutional infirmity for again said order does not tell us in
clear and categorical terms how these information gathered shall he handled. It does not
provide who shall control and access the data, under what circumstances and for what
purpose. These factors are essential to safeguard the privacy and guaranty the integrity of
the information. 58 Well to note, the computer linkage gives other government agencies
access to the information. Yet, there are no controls to guard against leakage of information.
When the access code of the control programs of the particular computer system is broken,
an intruder, without fear of sanction or penalty, can make use of the data for whatever
purpose, or worse, manipulate the data stored within the system. 59

It is plain and we hold that A.O. No. 308 falls short of assuring that personal information
which will be gathered about our people will only be processed for unequivocally specified
purposes. 60 The lack of proper safeguards in this regard of A.O. No. 308 may interfere with
the individual's liberty of abode and travel by enabling authorities to track down his
movement; it may also enable unscrupulous persons to access confidential information and
circumvent the right against self-incrimination; it may pave the way for "fishing expeditions"

456
by government authorities and evade the right against unreasonable searches and
seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and computer
technology are accentuated when we consider that the individual lacks control over what can
be read or placed on his ID, much less verify the correctness of the data encoded. 62 They
threaten the very abuses that the Bill of Rights seeks to prevent. 63

The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier

on an individual and transmit it over a national network is one of the most graphic threats of
the computer revolution. 64 The computer is capable of producing a comprehensive dossier
on individuals out of information given at different times and for varied purposes. 65 It can
continue adding to the stored data and keeping the information up to date. Retrieval of stored
date is simple. When information of a privileged character finds its way into the computer, it
can be extracted together with other data on the subject. 66Once extracted, the information is
putty in the hands of any person. The end of privacy begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would
dismiss its danger to the right to privacy as speculative and hypothetical. Again, we cannot
countenance such a laidback posture. The Court will not be true to its role as the ultimate
guardian of the people's liberty if it would not immediately smother the sparks that endanger
their rights but would rather wait for the fire that could consume them.

We reject the argument of the Solicitor General that an individual has a reasonable
expectation of privacy with regard to the Natioal ID and the use of biometrics technology as it
stands on quicksand. The reasonableness of a person's expectation of privacy depends on a
two-part test: (1) whether by his conduct, the individual has exhibited an expectation of
privacy; and (2) whether this expectation is one that society recognizes as reasonable. 67 The
factual circumstances of the case determines the reasonableness of the
expectation. 68 However, other factors, such as customs, physical surroundings and practices
of a particular activity, may serve to create or diminish this expectation. 69 The use of
biometrics and computer technology in A.O. No. 308 does not assure the individual of a
reasonable expectation of privacy. 70 As technology advances, the level of reasonably
expected privacy decreases. 71 The measure of protection granted by the reasonable
expectation diminishes as relevant technology becomes more widely accepted. 72 The
security of the computer data file depends not only on the physical inaccessibility of the file
but also on the advances in hardware and software computer technology. A.O. No. 308 is so
widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its provisions.

The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and
regulations merely implement the policy of the law or order. On its face, A.O. No. gives the
IACC virtually infettered discretion to determine the metes and bounds of the ID System.

Nor do your present laws prvide adequate safeguards for a reasonable expectation of
privacy. Commonwealth Act. No. 591 penalizes the disclosure by any person of data
furnished by the individual to the NSO with imprisonment and fine. 73 Republic Act. No. 1161
prohibits public disclosure of SSS employment records and reports. 74 These laws, however,
apply to records and data with the NSO and the SSS. It is not clear whether they may be
applied to data with the other government agencies forming part of the National ID System.
The need to clarify the penal aspect of A.O. No. 308 is another reason why its enactment
should be given to Congress.

457
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of
privacy by using the rational relationship test. 75 He stressed that the purposes of A.O. No.
308 are: (1) to streamline and speed up the implementation of basic government services, (2)
eradicate fraud by avoiding duplication of services, and (3) generate population data for
development planning. He cocludes that these purposes justify the incursions into the right
to privacy for the means are rationally related to the end. 76

We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of
R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We
declared that the law, in compelling a public officer to make an annual report disclosing his
assets and liabilities, his sources of income and expenses, did not infringe on the
individual's right to privacy. The law was enacted to promote morality in public
administration by curtailing and minimizing the opportunities for official corruption and
maintaining a standard of honesty in the public service. 78

The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not
an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on
what practices were prohibited and penalized, and it was narrowly drawn to avoid abuses. IN
the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not narrowly drawn. And we now hod that when the
integrity of a fundamental right is at stake, this court will give the challenged law,
administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to
invoke the presumption of regularity in the performance of official duties. Nor is it enough for
the authorities to prove that their act is not irrational for a basic right can be diminished, if
not defeated, even when the government does not act irrationally. They must satisfactorily
show the presence of compelling state interests and that the law, rule or regulation is
narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution
whose entire matrix is designed to protect human rights and to prevent authoritarianism. In
case of doubt, the least we can do is to lean towards the stance that will not put in danger the
rights protected by the Constitutions.

The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the
United States Supreme Court was presented with the question of whether the State of New
York could keep a centralized computer record of the names and addresses of all persons
who obtained certain drugs pursuant to a doctor's prescription. The New York State
Controlled Substance Act of 1972 required physicians to identify parties obtaining
prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but
with a potential for abuse, so that the names and addresses of the patients can be recorded
in a centralized computer file of the State Department of Health. The plaintiffs, who were
patients and doctors, claimed that some people might decline necessary medication because
of their fear that the computerized data may be readily available and open to public
disclosure; and that once disclosed, it may stigmatize them as drug addicts. 80 The plaintiffs
alleged that the statute invaded a constitutionally protected zone of privacy, i.e., the
individual interest in avoiding disclosure of personal matters, and the interest in
independence in making certain kinds of important decisions. The U.S. Supreme Court held
that while an individual's interest in avoiding disclosuer of personal matter is an aspect of the
right to privacy, the statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the enforcement of laws
designed to minimize the misuse of dangerous drugs. The patient-identification requirement
was a product of an orderly and rational legislative decision made upon recommmendation
by a specially appointed commission which held extensive hearings on the matter. Moreover,
the statute was narrowly drawn and contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and requirements for the gathering, storage

458
and retrieval of the informatin. It ebumerated who were authorized to access the data. It also
prohibited public disclosure of the data by imposing penalties for its violation. In view of
these safeguards, the infringement of the patients' right to privacy was justified by a valid
exercise of police power. As we discussed above, A.O. No. 308 lacks these vital safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per
se agains the use of computers to accumulate, store, process, retvieve and transmit data to
improve our bureaucracy. Computers work wonders to achieve the efficiency which both
government and private industry seek. Many information system in different countries make
use of the computer to facilitate important social objective, such as better law enforcement,
faster delivery of public services, more efficient management of credit and insurance
programs, improvement of telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the computer could help good administration by making
accurate and comprehensive information for those who have to frame policy and make key
decisions. 82 The benefits of the computer has revolutionized information technology. It developed
the internet, 83 introduced the concept of cyberspace 84 and the information superhighway where
the individual, armed only with his personal computer, may surf and search all kinds and classes
of information from libraries and databases connected to the net.

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions
into individual privacy. The right is not intended to stifle scientific and technological
advancements that enhance public service and the common good. It merely requires that the
law be narrowly focused 85 and a compelling interest justify such intrusions. 86 Intrusions into the
right must be accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades individual privacy will
be subjected by this Court to strict scrutiny. The reason for this stance was laid down in Morfe v.
Mutuc, to wit:

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 disctinctions between absolute and
limited government. Ultimate 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
modern society has developed. All the forces of a 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. 87

IV

The right to privacy is one of the most threatened rights of man living in a mass society. The
threats emanate from various sources — governments, journalists, employers, social
scientists, etc. 88 In th case at bar, the threat comes from the executive branch of government
which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving
information about themselves on the pretext that it will facilitate delivery of basic services. Given
the record-keeping power of the computer, only the indifferent fail to perceive the danger that A.O.
No. 308 gives the government the power to compile a devastating dossier against unsuspecting
citizens. It is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result

459
could be that everyone will live burdened by an unerasable record of his past and his limitations.
In a way, the threat is that because of its record-keeping, the society will have lost its benign
capacity to forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick
in labelling the right to privacy as a fundamental right. We close with the statement that the right
to privacy was not engraved in our Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" declared null and
void for being unconstitutional

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL
and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY

S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE
OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

x-----------------------x

460
G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY

L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL
POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

x-----------------------x

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.

x-----------------------x

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,

National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY,
Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by
SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of
Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and
Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National
Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government, Respondents.

x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the

461
Ateneo Human Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA
DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of the
Executive Department of Government), Respondents.

x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS

INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT,
THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF
GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS,
DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

x-----------------------x

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.

x-----------------------x

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK

RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T.
JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives;

462
HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.

x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the
Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information
and Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official
capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police,Respondents.

x-----------------------x

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA

in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF
JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL
POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS
IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

x-----------------------x

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE

COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG
MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA

463
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY,
THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL
POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a system that links him to other computers and
enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings from
them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or
telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by posting defamatory statements against
him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing

464
his bank account or credit card or defrauding him through false representations. The wicked can use
the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate right to regulate the
use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the
computer systems and networks of indispensable or highly useful institutions as well as to the laptop
or computer programs and memories of innocent individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent these tomfooleries
from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings,
and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the
Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on
October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law
until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that
regard certain acts as crimes and impose penalties for their commission as well as provisions that
would enable the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

465
 l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the
RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional
construct,1 useful in determining the constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with
the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its
earlier applications to equal protection.3

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In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target system’s security and report back
to the owners the vulnerabilities they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who come into an organization to verify
its bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage
data interference, it intrudes into the area of protected speech and expression, creating a chilling
and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms
at all. It simply punishes what essentially is a form of vandalism,8 the act of willfully destroying
without right the things that belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.

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Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others from registering the same, if such a domain
name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case
of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name because he claims it
to be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should
recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name
or use it as a pseudo-name for it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on
ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

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b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one
(1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a
facet of the right protected by the guarantee against unreasonable searches and seizures.13 But the
Court acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy."
The Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized men," but also from our
adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his
residence address, his contact number, his place and date of birth, the name of his spouse if any,
his occupation, and similar data.19 The law punishes those who acquire or use such identifying
information without right, implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and correspondence as well
as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly,
what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists
would be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the essence of identity theft that the

469
law seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt
acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator.20 As
such, the press, whether in quest of news reporting or social investigation, has nothing to fear since
a special circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for
favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They
express fear that private communications of sexual character between husband and wife or
consenting adults, which are not regarded as crimes under the penal code, would now be regarded
as crimes when done "for favor" in cyberspace. In common usage, the term "favor" includes
"gracious kindness," "a special privilege or right granted or conceded," or "a token of love (as a
ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may
be a form of obscenity to some."23 The understanding of those who drew up the cybercrime law is
that the element of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act
actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not
novel. Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows."
The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any act, transaction,
scheme, or design involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that
serve no other purpose than satisfy the market for violence, lust, or pornography.29 The Court

470
weighed the property rights of individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately
through internet connection, perceived by some as a right, has to be balanced with the mandate of
the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds
of obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in the business of maintaining, controlling,
or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the
aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act
No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in
Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of
200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government
from invoking the ACPA when prosecuting persons who commit child pornography using a computer
system. Actually, ACPA’s definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably, no one has questioned this
ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty.32 The potential for uncontrolled
proliferation of a particular piece of child pornography when uploaded in the cyberspace is
incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

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The question of aiding and abetting the offense by simply commenting on it will be discussed
elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic

communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt-
out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the
source of the electronic message; and

(cc) The commercial electronic communication does not purposely include

misleading information in any part of the message in order to induce the recipients to
read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and
Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters the recipient’s domain without prior permission.
The OSG contends that commercial speech enjoys less protection in law.

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But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their recipients always have the option
to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.

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, legislative 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.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its minimum and medium periods
or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be
brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable
under this Act:

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 xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means which may be
devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be
overturned as the Court has done in Fermin v. People39 even where the offended parties happened
to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with
the knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must
be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as
to the truth of the statement he published. Gross or even extreme negligence is not sufficient to
establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime
law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion
of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the Court found the presence of malice
in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in law, the article being malicious
in itself, but there was also malice in fact, as there was motive to talk ill against complainants during
the electoral campaign. (Emphasis ours)

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Indeed, the Court took into account the relatively wide leeway given to utterances against public
figures in the above case, cinema and television personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of
the assailed statement.45 For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They
point out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute
an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that
it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be
admitted, unless the imputation shall have been made against Government employees with respect
to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle
freedom of expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and
that the government has an obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from
that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a

sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory
statements posted in cyberspace, facilitated by one-click reply options offered by the networking site
as well as by the speed with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet constitute aiding and

475
abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will
deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or
aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to define every single
word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a
person aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or
interfering in the peaceful picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users.55 Based on a recent survey, the
Philippines ranks 6th in the top 10 most engaged countries for social networking.56 Social networking
sites build social relations among people who, for example, share interests, activities, backgrounds,
or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people
with shared interests use Facebook to get in touch.58 Users register at this site, create a personal
profile or an open book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can post a statement, a
photo, or a video on Facebook, which can be made visible to anyone, depending on the user’s
privacy settings.

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If the post is made available to the public, meaning to everyone and not only to his friends, anyone
on Facebook can react to the posting, clicking any of several buttons of preferences on the
program’s screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the
posting while "Comment" enables him to post online his feelings or views about the same, such as
"This is great!" When a Facebook user "Shares" a posting, the original "posting" will appear on his
own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in
the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to
read the same, and "Following," those whom this particular user is subscribed to, enabling him to
read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of
copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or
Sun; d) the internet café that may have provided the computer used for posting the blog; e) the
person who makes a favorable comment on the blog; and f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider).
She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service
Provider).

One day, Maria posts on her internet account the statement that a certain married public official has
an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and
the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link
to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link
to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and
posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and
making Comments on the assailed posting. A lot of them even press the Share button, resulting in
the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world,
if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions

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of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of
their response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties
Union,61 a case involving the constitutionality of the Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing
use of an interactive computer service to send to a specific person or persons under 18 years of age
or to display in a manner available to a person under 18 years of age communications that, in
context, depict or describe, in terms "patently offensive" as measured by contemporary community
standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of
freedom of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter
of special concern for two reasons. First, the CDA is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium
and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two
years in prison for each act of violation. The severity of criminal sanctions may well cause speakers
to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be
entitled to constitutional protection. That danger provides further reason for insisting that the statute
not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided
by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse.
Scurrilous statements can spread and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and

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friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a person’s reputation and
peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of
protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to
mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise
any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the
statute based solely on the violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes
from statutes violating free speech. A person who does not know whether his speech constitutes a
crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is

inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether
new defamatory story against Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that
society values. Allowed to cascade in the internet, it will destroy relationships and, under certain

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circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes
child pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally
protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent
to Facebook to access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on the basis of this
information.70 As the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a
fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable
unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level
of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on
Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
party’s computer system but the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to
use these because the system supervisor is alerted.72 If Section 5 that punishes any person who
willfully attempts to commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.

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Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While
this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be
identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws,
if committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws,
as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between
crimes committed through the use of information and communications technology and similar crimes
committed using other means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set
of acts may be prosecuted and penalized simultaneously under two laws, a special law and the
Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.74 With the exception of the crimes
of online libel and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4)
is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication.75 Charging the offender under both laws
would be a blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the
ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s
definition of child pornography in fact already covers the use of "electronic, mechanical, digital,

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optical, magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and
ACPA would likewise be tantamount to a violation of the constitutional prohibition against double
jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections
4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the
damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to
maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall
be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos
(Ph₱50,000.00) but not exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand
pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission
of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at some prior time the act
or omission was but an element of another offense or might just have been connected with another

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crime.77 Judges and magistrates can only interpret and apply them and have no authority to modify or
revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection
or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of
any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data
in real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim
that data showing where digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from government
snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the State against
constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need
to put order to the tremendous activities in cyberspace for public good.82 To do this, it is within the
realm of reason that the government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief

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Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to
adopt legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been
committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that
purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways the cyber criminals can
quickly erase their tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued search and
seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain
constitutional guarantees work together to create zones of privacy wherein governmental powers
may not intrude, and that there exists an independent constitutional right of privacy. Such right to be
left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified
privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves
the right to independence in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational
privacy—that those who oppose government collection or recording of traffic data in real-time seek
to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion.91 In determining whether or not a matter is
entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all
sorts of electronic devices to communicate with one another. Consequently, the expectation of
privacy is to be measured from the general public’s point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his cellphone number and the

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cellphone number of his recipient, accompanying the message sent. It is this information that creates
the traffic data. Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post letters have
no expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may
be likened to parcels of letters or things that are sent through the posts. When data is sent from any
one source, the content is broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video, internet chat messages, email,
online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do
not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other
person’s cellphone where they are refitted together and heard. The latter’s spoken reply is sent to
the caller in the same way. To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call through. He also reveals the
cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned
that telephone users in the ‘70s must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled that even if there is an expectation
that phone numbers one dials should remain private, such expectation is not one that society is
prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with
one another over cyberspace except through some service providers to whom they must submit
certain traffic data that are needed for a successful cyberspace communication. The conveyance of
this data takes them out of the private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under surveillance. With enough traffic
data, analysts may be able to determine a person’s close associations, religious views, political
affiliations, even sexual preferences. Such information is likely beyond what the public may expect to
be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure
that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical
or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion
of the police. Replying to this, the Solicitor General asserts that Congress is not required to define
the meaning of every word it uses in drafting the law.

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Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of
a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes
from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real
time" because it is not possible to get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched stands to be
removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the law could be better served by providing for
more robust safeguards. His bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly drawn
to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine. These doctrines however, have been consistently
held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical
or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy
and facilitate intrusions 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."96 The Court must
ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

486
Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence
in a case, the mere furnishing to such service provider of the transmittal document to the Office of
the Prosecutor shall be deemed a notification to preserve the computer data until the termination of
the case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a
form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider
has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six months from the date
of the transaction and those relating to content data for at least six months from receipt of the order
for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its
keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance
of such orders. The process of preserving data will not unduly hamper the normal transmission or
use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for the purpose of
investigation.

487
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power
to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a
function usually lodged in the hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not constitute an unlawful search or
seizure nor would it violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure
warrant is properly issued, the law enforcement authorities shall likewise have the following powers
and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of
the computer data storage medium and to make a return thereon but in no case for a period longer
than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and
seizure procedures. On its face, however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection, preservation, and use of computer
system or data that have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken. Section 15 does not
appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

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Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately
and completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination,
destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as
necessary to clear up the service provider’s storage systems and prevent overload. It would also
ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the user’s right against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the data or received it.
He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie
found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the
service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The Department of Justice order
cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates
as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as
illegal. But for an executive officer to seize content alleged to be unprotected without any judicial
warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so
would make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech

489
are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any provision of the
cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically
the orders from law enforcement authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty
(30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.

490
Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it. The second test mandates adequate
1av vphi1

guidelines or limitations in the law to determine the boundaries of the delegate’s authority and
prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement
a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber environment
and organization and user’s assets.104 This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at
both the domestic and international levels, and by providing arrangements for fast and reliable
international cooperation."105 This policy is clearly adopted in the interest of law and order, which has
been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited

commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time;

and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

491
 c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual

organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for
six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data

after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center

(CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect
to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others
who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4)
on System

492
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section
4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section
7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of
2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID
and UNCONSTITUTIONAL.

SO ORDERED.

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant
and of first impression. We are asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens — who are not candidates — during
elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.

The facts are not disputed.

493
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10')
in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case.4 This tarpaulin
contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with
a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6Those who voted for the passing of the law were classified by petitioners as comprising "Team
Patay," while those who voted against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement
of two feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be
given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this
opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal
of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The
letter of COMELEC Law Department was silenton the remedies available to petitioners. The letter
provides as follows:

Dear Bishop Navarra:

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It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the
church vicinity promoting for or against the candidates and party-list groups with the following names
and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of
the said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by
three feet (3’), please order/cause the immediate removal of said election propaganda material,
otherwise, we shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question respondents’ notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining
respondents from further proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing
them or any other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to

495
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda subject
to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening holidays.19

The issues, which also served as guide for the oral arguments, are:20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS

DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH
WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL

ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT
A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

496
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final
orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As a
special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not
an interlocutory order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions
to this general rule. Repolwas another election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court because the COMELEC First
Division issued a status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it
cannot take jurisdiction to review interlocutory orders of a COMELEC Division.38However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the exception:

497
This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by
the COMELEC Division was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this
court a petition for certiorari against an interlocutory order of the COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the
main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the
mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case that he
engaged in vote buying in the 1995 elections.46No motion for reconsideration was filed before the
COMELEC En Banc. This court, however, took cognizance of this case applying one of the
exceptions in ABS-CBN: The assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition for lack of form and
substance.49 This court clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning candidate.

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In the present case, petitioners are not candidates seeking for public office. Their petition is filed to
assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the implementation
of its regulatory powers. When it issued the notice and letter, the COMELEC was allegedly
enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and
the "chilling effect" caused by respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013
ordering the removal of the tarpaulin.53 It is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of separation of church and state and, thus, are
unconstitutional.54

The jurisdiction of this court over the subject matter is determined from the allegations in the petition.
Subject matter jurisdiction is defined as the authority "to hear and determine cases of the general
class to which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers."55Definitely, the subject matter in this case is different
from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move people
to action. It is concerned with the sovereign right to change the contours of power whether through
the election of representatives in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation
of the cogency of the message. Neither do we assess whether we should protect speech based on
the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in practice will define the
quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition.
Under the conditions in which it was issued and in view of the novelty of this case,it could result in a
"chilling effect" that would affect other citizens who want their voices heard on issues during the
elections. Other citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court
is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for raising
grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s
expanded exercise of certiorari as provided by the Constitution as follows:

499
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 ornot 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.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had
any jurisdiction at all with its acts threatening imminent criminal action effectively abridging
meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on
free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for certiorari
and prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of

discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act
tainted with unconstitutionality on the part of any government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to protect the people
against government’s infringement of their fundamental rights. This constitutional mandate out
weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

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This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general rule on hierarchy of courts, none of these are
present in this case.59

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is designed
to shield the Court from having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari,
prohibition, and mandamus, citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not controllable by
the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action
for the writ’s procurement must be presented. This is and should continue to be the policy in this
regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.67 To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort

501
to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in
the light of new circumstances or in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted by the nature of the issues
clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that
must be addressed at the most immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of
expression in the present case, but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in political discourse. To
quote an eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may provide, as
public participation in nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate protection by this court.

502
A second exception is when the issuesinvolved are of transcendental importance.74 In these cases,
the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing
their votes. It may be said that in an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a matter of first impression that may
guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of whether
the right of suffrage includes the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to this court is
allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court
held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated
in its discussion.79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality
on whether COMELEC committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013
election period. Although the elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for
direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body.
In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province were [to] arrogate itself the
power to disregard, suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81

503
In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with
the lower courts, any ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided accordingly in
the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents’ acts in violation
of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient ground to allow direct resort to this court.

Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’
registration lists,84 and the status and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is
permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate opinion
in Osmeña v. COMELEC86 to support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to
be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the
latter, being one of general application, must yield to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission
on Elections to ensure that all candidates are given an equal chance to media coverage and thereby
be equally perceived as giving real life to the candidates’ right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that
which the legislature deems to be best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon.87

504
This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak,
on their equal opportunities for media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-candidates, to post the tarpaulin
in their private property, asan exercise of their right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not proscribed from deciding on the merits of
this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political
question:

What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law should be.
In political forums, particularly the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.

The complementary nature of the political and judicial branches of government is essential in order
to ensure that the rights of the general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand deference for the duties and functions
constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to
the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no political
question. It can be acted upon by this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of different
agencies and departments of the executive or those of the legislature. The political question doctrine
is used as a defense when the petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by the Constitution or the law. In
such situation, presumptively, this court should act with deference. It will decline to void an act
unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of
discretion.

The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

505
When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of carefully
and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence
ofa political question did not bar an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the question of whether there was grave
abuse of discretion in the President’s use of his power to call out the armed forces to prevent and
suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may avert
catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And
such review does not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President.98

The concept of judicial power in relation to the concept of the political question was discussed most
extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

506
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power as including "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." As well
observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied in
the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court,under previous constitutions, would have normally left to the
political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes
an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance
that this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that
a political question brings.

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I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first brought the matter to the COMELEC En Banc or
any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."103 They add
that the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture."106

Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the filing of
the election offense against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in
their pleadings prolongs the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental
right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a
department secretary whose acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)

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The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the issue then on the RH Law
as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this
case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the elections
by calling attention to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 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 therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that 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."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to expression during this period may not be
regulated by COMELEC.121

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Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and
"candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-
list groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis
supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the
Fair Election Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas
and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which
shall be issued by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.

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Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of candidates and political parties.
. . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political
parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period.127

National Press Club involved the prohibition on the sale and donation of space and time for political
advertisements, limiting political advertisements to COMELEC-designated space and time. This
case was brought by representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of
the candidates.128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However,
this case does not apply as most of the petitioners were electoral candidates, unlike petitioners in
the instant case. Moreover, the subject matter of National Press Club, Section 11(b) of Republic Act
No. 6646,129 only refers to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of
reporters or broadcasters to air their commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013
national elections because of the COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply to this
case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:

....

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(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against

the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose

the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan election activity. Public expressions
or opinions or discussions of probable issues in a forthcoming electionor on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention
shall not be construed as part of any election campaign or partisan political activity contemplated
under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized are valid and constitutional.131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

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Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays.135 What was questioned
was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution
No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop
ABS-CBN from conducting exit surveys.139 The right to freedom of expression was similarly upheld in
this case and, consequently, the assailed resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in
the Constitution. The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition to
the freedom of speech and of the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29,
it says: "No law shall be passed abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

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FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom
itself as "[t]he right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought."142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when "(1) a

speaker, seeking to signal others, uses conventional actions because he orshe reasonably believes
that such actions will be taken by the audience in the manner intended; and (2) the audience so
takes the actions."144 "[I]n communicative action[,] the hearer may respond to the claims by . . . either
accepting the speech act’s claims or opposing them with criticism or requests for justification."145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be
‘sufficient to bring into play the [right to freedom of expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of
the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute the
flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty
not to utter what is not in his mind. The salute is a symbolic manner of communication that conveys
its messageas clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious objections like those
raised in this petition. To impose it on the petitioners is to deny them the right not to speak when
their religion bids them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners, no
less than the impatience of those who disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal utterances.

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In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification "is
without legal and factual basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds that "every writer,actor,
or producer, no matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be
unduly restrictive."156 However, the petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the classification made by the Board.157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content. Compared with the pedestrians, the
passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the
fonts and images, the greater the probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they make the effort to emphasize their
messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political candidates and an expression of
support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to
advocacies, and contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in our
government.

These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and kept
hostage by brief and catchy but meaningless sound bites extolling the character of the candidate.
Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact encourage it. Between the
candidates and the electorate, the latter have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the former have better incentives to
avoid difficult political standpoints and instead focus on appearances and empty promises.

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Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic right
to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize
government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy may evolve to
the right of the people to make government accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies."162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the principle
that "debate on public issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164

Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by [the]
free trade in ideas:"165

When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their
own conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new
ones. This promotes both stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the
thought that we hate, no less than for the thought that agrees with us."168 In fact, free speech may
"best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with

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conditions as they are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of
assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment.Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between individuals and the state - a free
space for the development of individual personality, distinct group identity, and dissident ideas - and
a potential source of opposition to the state."174 Free speech must be protected as the vehicle to find
those who have similar and shared values and ideals, to join together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is
of great importance in a republic not only to guard the society against the oppression of its rulers, but
to guard one part of the society against the injustice of the other part."178 We should strive to ensure
that free speech is protected especially in light of any potential oppression against those who find
themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting
in the ‘banking up of a menacing flood of sullen anger behind the walls of restriction’"181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid this situation and
prevent people from resorting to violence, there is a need for peaceful methods in making
passionate dissent. This includes "free expression and political participation"183 in that they can "vote
for candidates who share their views, petition their legislatures to [make or] change laws, . . .
distribute literature alerting other citizens of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s
goal, considering the possibility that repression of nonviolent dissent may spill over to violent means
just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is

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defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . .
.

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views
and beliefs about issues and candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189It was "part of their advocacy campaign against the
RH Law,"190 which was not paid for by any candidate or political party.191 Thus, "the questioned orders
which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of
constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills,
this court discussed the preferred position occupied by freedom of expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, ofthe influential and powerful, and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage."196 A similar
idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s concurring and
dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the language of the declaration of
principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in it
can be governed only by officials whom they themselves have placed in office by their votes. And in
it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and

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peaceful assembly and redress of grievances are being exercised in relation to suffrage or asa
means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If
our democracy and republicanism are to be worthwhile, the conduct of public affairs by our officials
must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
at all times. Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this way that he
can rightfully gain the confidence of the people. I have no patience for those who would regard
public dissection of the establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or time.198 (Emphasis
supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of
speech may be subject to regulation:

Some types of speech may be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant interests of one type of
speech, e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial transaction."202 The expression resulting
from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting
opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay and Team Patay and
the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts of
this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and

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other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office, and shall include any
of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered
acts of election campaigning or partisan politicalactivity unless expressed by government officials in
the Executive Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in Republic
Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of
public affairs. We acknowledged that free speech includes the right to criticize the conduct of public
men:

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 official dom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances,
allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this
court noted every citizen’s privilege to criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being penalized.212 The ponente adds

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that he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views.
According to this court, "[i]ts value may lie in the fact that there may be something worth hearing
from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be changed for
the better and ideas that may be deliberated on to attain that purpose. Necessarily, it also makes the
government accountable for acts that violate constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass
media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216This court mentioned how "discussion of public issues and debate
on the qualifications of candidates in an election are essential to the proper functioning of the
government established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of
elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known what
the people need to know,219 while the meaningful exercise of one’s right of suffrage includes the right
of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and
the freedom of expression especially in relation to information that ensures the meaningful exercise
of the right of suffrage:

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. 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.221(Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights
and even government protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are
still subjectto some restrictions. The degree of restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-based regulations can either be based on the viewpoint
of the speaker or the subject of the expression.

II.B.6

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Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224

On the other hand, petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial speech.225 "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226

The regulation may reasonably be considered as either content-neutral or content-

based.227 Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will
be adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will want to use their
resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally
unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear
and present danger rule as measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if justified by
a compelling reason, and the restrictions imposedare neither overbroad nor vague.229 (Citations
omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone else’s constitutional rights.

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Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234The ordinance in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public."239

As early as 1907, United States v. Apurado240 recognized 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. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time, place, and manner of
the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants
must follow which include informing the licensing authority ahead of time as regards the date, public
place, and time of the assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test is the standard used
for his decision and the applicants are given the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No.
880 does not prohibit assemblies but simply regulates their time, place, and manner.245 In 2010, this
court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue from
Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily
divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity,"250 and it is subject only to the intermediate approach.251

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This intermediate approach is based on the test that we have prescribed in several cases.252 A
content-neutral government regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of
free expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On
the second requirement, not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have held,
for example, that "the welfare of children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech."258 In any case, faced with
both rights to freedom of speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation."259

Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property.260 This is consistent
with the fundamental right against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to justify regulation of the
preferred right to freedom of expression.

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The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet
(3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of tarpaulins
that may be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing
the restriction, but more so at the effects of such restriction, if implemented. The restriction must not
be narrowly tailored to achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum
sizeof the tarpaulin would render ineffective petitioners’ message and violate their right to exercise
freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised to
make more meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of Marshall McLuhan,
"the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often counted for more than the words
themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.

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However, as agreed by the parties during the oral arguments in this case, this is not the situation
that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the
part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected. It is
true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels
of expenditures. However, labelling all expressions of private parties that tend to have an effect on
the debate in the elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech like in this case. Instead, to address this evil, better and more effective enforcement
will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend
their own resources in order to lend support for the campaigns. This may be without agreement
between the speaker and the candidate or his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and statutory limits of campaign
spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily — even almost incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an
important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain
no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."

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This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during elections.
A becoming humility on the part of any human institution no matter how endowed with the secular
ability to decide legal controversies with finality entails that we are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to
grave social problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of
diluting freedoms as exercised in reality and, thus, render them meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at
the point of giving priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world like
ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always been
a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control.276

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In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the other is not that
of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society
in which man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by
the people — "implies a necessary condition, namely, that the people must be capable of
deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence
and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by those
who determine the national and the individual interest."279 A slant toward left manifests from his belief
that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections
of expressive liberty,"281 especially by political egalitarians. Considerations such as "expressive,
deliberative, and informational interests,"282 costs or the price of expression, and background facts,
when taken together, produce bases for a system of stringent protections for expressive liberties.283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public deliberation about some
issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to
"remedy the harms of speech with more speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for context and "the specification
of substantive values before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds

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that "equality continues to be viewed in a formal rather than a substantive sense."292 Thus, more
speech can only mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free
of charge print space or air time for campaign or other political purposes, except to the Commission
on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295 This court grounded this measure
on constitutional provisions mandating political equality:296 Article IX-C, Section 4

Section 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 therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity
or invalidity of speech.

529
The textual basis of this view is that the constitutional provision uses negative rather than affirmative
language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to
their own devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of
speech includes "not only the right to express one’s views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be informed on matters of public
concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters
and candidates, education, means of transportation, health, public discussion, private animosities,
the weather, the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of
men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate.302 (Emphasis
supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:

the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the
best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives
him of his free speech."307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there are saturation levels
and a point where spending no longer pays off in votes per dollar."310

530
III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and
their necessity to relate. On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the
cultural hegemony of the majority may have the effect of drowning out the speech and the messages
of those in the minority. In a sense, social inequality does have its effect on the exercise and effect
of the guarantee of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments
of the value of such viewpoint or message content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v.
COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates
or who do not speak as members of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited, and robust debate
in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the
speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.

531
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read by the general public
and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating
to election propaganda by applying such regulations to private individuals.314 Certainly, any provision
or regulation can be circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during
the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political
party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted
is "so broad that it encompasses even the citizen’s private property."317 Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:

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])318

This court ruled that the regulation in Adiong violates private property rights:

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.

532
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 inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror 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.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s infringement
upon petitioners’ property rights as in the present case also reaches out to infringement on their
fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individual’s right to exercise property rights. Otherwise, the due process
clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to property.

V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice
and letter violated the right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. 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. Noreligious test shall be required for the
exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the
free exercise and enjoyment of religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners’ claim that "the views and position of the

533
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325

The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This
court found a balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church."332 That the position of the Catholic church appears to coincide with
the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within
the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of
candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political
consequences and not religious speech.

534
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations
Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached religious significance."334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this
case. However, it was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of the
electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and party-
list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.

Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties.
It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that
tends to rouse the public to debate contemporary issues. This is not speechby candidates or political

535
parties to entice votes. It is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected
as a fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued
is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared unconstitutional.

SO ORDERED.

G.R. No. L-12592 March 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
FELIPE BUSTOS, ET AL., defendants-appellants.

Kincaid and Perkins for appellants.

Acting Attorney-General Paredes, for appellee.

MALCOLM, J.:

This appeal presents the specific question of whether or not the defendants and appellants are guilty
of a libel of Roman Punsalan, justice of the peace of Macabebe and Masantol, Province of
Pampanga. The appeal also submits the larger question of the attitude which the judiciary should
take interpreting and enforcing the Libel Law in connection with the basic prerogatives of freedom of
speech and press, and of assembly and petition. For a better understanding, the facts in the present
appeal are the first narrated in the order of their occurrence, then certain suggestive aspects relative
to the rights of freedom of speech and press and of assembly and petition are interpolated, then the
facts are tested by these principles, and, finally, judgment is rendered.

First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga
assembled, and prepared and signed a petition to the Executive Secretary through the law office of
Crossfield and O'Brien, and five individuals signed affidavits, charging Roman Punsalan, justice of
the peace of Macabebe and Masantol, Pampanga, with malfeasance in office and asking for his
removal. Crossfield and O'Brien submitted this petition and these affidavits with a complaint to the
Executive Secretary. The petition transmitted by these attorneys was signed by thirty-four citizens
apparently of considerable standing, including councilors and property owners (now the defendants),
and contained the statements set out in the information as libelous. Briefly stated the specific
charges against the justice of the peace were.

1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the
justice of the peace, who first told her that he would draw up complaint for P5; afterwards he said he
would take P3 which she paid; also kept her in the house for four days as a servant and took from
her two chickens and twelve "gandus;"

2. That Valentin Sunga being interested in a case regarding land which was on trial before the
justice of the peace, went to see the justice of the peace to ascertain the result of the trial, and was
told by the justice of the peace that if he wished to win he must give him P50. Not having this

536
amount, Sunga gave the justice nothing, and a few days later was informed that he had lost the
case. Returning again to the office of the justice of the peace in order to appeal, the justice told him
that he could still win if he would pay P50;

3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of
the trial the justice called him over to his house, where he secretly gave him (Quiambao) P30; and
the complaint was thereupon shelved.

The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial
District requesting investigation, proper action, and report. The justice of the peace was notified and
denied the charges. The judge of first instance found the first count not proved and counts 2 and 3
established. In view of this result, the judge, the Honorable Percy M. Moir, was of the opinion "that it
must be, and it is hereby, recommended to the Governor-General that the respondent be removed
from his position as justice of the peace of Macabebe and Masantol, Province of Pampanga, and it is
ordered that the proceedings had in this case be transmitted to the Executive Secretary."

Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the
motion and reopened the hearing; documents were introduced, including a letter sent by the
municipal president and six councilors of Masantol, Pampanga, asserting that the justice of the
peace was the victim of prosecution, and that one Agustin Jaime, the auxiliary justice of the peace,
had instituted the charges for personal reasons; and the judge of first instance ordered a
suppression of the charges against Punsalan and acquitted him the same. Attorneys for
complainants thereupon appealed to the Governor-General, but whether the papers were forwarded
to the Governor-General as requested the record does not disclose.

Criminal action against the petitioners, now become the defendants, was instituted on October 12,
1916, by virtue of the following information:

That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga,
P. I., the said accused, voluntarily, illegally, and criminally and with malicious intent to
prejudice and defame Mr. Roman Punsalan Serrano who was at said time and place justice
of the peace of Macabebe and Masantol of this province, wrote, signed, and published a
writing which was false, scandalous, malicious, defamatory, and libelous against the justice
of the peace Mr. Roman Punsalan Serrano, in which writing appear among other things the
following:

That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on
account of the conduct observed by him heretofore, a conduct highly improper of the office
which he holds, is found to be a public functionary who is absolutely unfair, eminently
immoral and dangerous to the community, and consequently unworthy of the office.

That this assertion of the undersigned is evidenced in a clear and positive manner by facts
so certain, so serious, and so denigrating which appear in the affidavits attached hereto, and
by other facts no less serious, but which the undersigned refrain from citing herein for the
sake of brevity and in order not to bother too much the attention of your Honor and due to
lack of sufficient proof to substantiate them.

That should the higher authorities allow the said justice of the peace of this town to continue
in his office, the protection of the rights and interests of its inhabitants will be illusory and
utopic; rights and interest solemnly guaranteed by the Philippine Bill of Rights, and justice in
this town will not be administered in accordance with law.

537
 That on account of the wrongful discharge of his office and of his bad conducts as such
justice of the peace, previous to this time, some respectable citizens of this town of
Macabebe were compelled to present an administrative case against the said Roman
Punsalan Serrano before the judge of first instance of Pampanga, in which case there were
made against him various charges which were true and certain and of different characters.

That after the said administrative case was over, the said justice of the peace, far from
charging his bad and despicable conduct, which has roused the indignation of this town of
Macabebe, subsequently performed the acts abovementioned, as stated in the affidavits
herewith attached, as if intending to mock at the people and to show his mistaken valor and
heroism.'

All of this has been written and published by the accused with deliberate purpose of
attacking the virtue, honor, and reputation of the justice of the peace, Mr. Roman Punsalan
Serrano, and thus exposing him to public hatred contempt, and ridicule. All contrary to law.

It should be noted that the information omits paragraphs of the petition mentioning the investigation
before the judge of first instance, the affidavits upon which based and concluding words, "To the
Executive Secretary, through the office of Crossfield and O'Brien."

The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez, Juan
S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty and sentenced each of them to pay a fine of
P10 and one thirty-second part of the costs, or to suffer subsidiary imprisonment in case of
insolvency. New attorneys for the defense, coming into the case, after the handing down of the
decision, file on December 16, 1916, a motion for a new trial, the principal purpose of which was to
retire the objection interposed by the then counsel for the defendants to the admission of Exhibit A
consisting of the entire administrative proceedings. The trial court denied the motion. All the
defendants, except Melecio S. Sabado and Fortunato Macalino appealed making the following
assignments of error:

1. The court erred in overruling the motion of the convicted defendants for a new trial.

2. The court erred in refusing to permit the defendants to retire the objection in advertently
interposed by their counsel to the admission in evidence of the expediente administrativo out
of which the accusation in this case arose.

3. The court erred in sustaining the objection of the prosecution to the introduction in
evidence by the accused of the affidavits upon which the petition forming the basis of the
libelous charge was based.

4. The court erred in not holding that the alleged libelous statement was unqualifiedly
privileged.

5. The court erred in assuming and impliedly holding that the burden was on the defendants
to show that the alleged libelous statements were true and free from malice.

6. The court erred in not acquitting the defendants.

7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable
doubt. This is especially true of all the defendants, except Felipe Bustos, Dionisio Mallari,
and Jose T. Reyes.

538
We have thus far taken it for granted that all the proceedings, administrative and judicial, were
properly before this court. As a matter of fact counsel for defendants in the lower court made an
improvident objection to the admission of the administrative proceedings on the ground that the
signatures were not identified and that the same was immaterial, which objection was partially
sustained by the trial court. Notwithstanding this curious situation by reason of which the attorney for
the defense attempted to destroy through his objection the very foundation for the justification of his
clients, we shall continue to consider all the proceedings as before us. Not indicating specifically the
reason for this action, let the following be stated: The administrative proceedings were repeatedly
mentioned during the trial. These proceedings were the basis of the accusation, the information, the
evidence, and the judgment rendered. The prosecution cannot be understood without knowledge of
anterior action. Nothing more unjust could be imagined than to pick out certain words which standing
by themselves and unexplained are libelous and then by shutting off all knowledge of facts which
would justify these words, to convict the accused. The records in question are attached to the rollo,
and either on the ground that the attorneys for the defense retired the objection to the introduction of
the administrative proceedings by the prosecution, or that a new trial should have been had because
under section 42 of the Code of Criminal Procedure "a case may be reopened on account of errors
at law committed at the trial," or because of the right of this court to call in such records as are
sufficiently incorporated into the complaint and are essential to a determination of the case, or finally,
because of our conceded right to take judicial notice of official action in administrative cases and of
judicial proceedings supplemental to the basis action, we examine the record as before us,
containing not alone the trial for libel, but the proceedings previous to that trial giving rise to it. To
this action, the Government can not explain for it was the prosecution which tried to incorporate
Exhibit A into the record.

With these facts pleading justification, before testing them by certain principles which make up the
law of libel and slander, we feel warranted in seizing the opportunity to intrude an introductory and
general discussion of freedom of speech and press and assembly and petition in the Philippine
Islands. We conceive that the time is ripe thus to clear up certain misapprehensions on the subject
and to place these basic rights in their proper light.

Turning to the pages of history, we state nothing new when we set down that freedom of speech as
cherished in democratic countries was unknown in the Philippine Islands before 1900. A prime
cause for revolt was consequently ready made. Jose Rizal in "Filipinas Despues de Cien Años" (The
Philippines a Century Hence, pages 62 et seq.) describing "the reforms sine quibus non," which the
Filipinos insist upon, said: "

The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in
the Philippines free and by instituting Filipinos delegates.

The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means invariably
in exposing the wants of the Filipino people demanded "liberty of the press, of cults, and
associations." (See Mabini, La Revolucion Filipina.) The Malolos Constitution, the work of the
Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of speech and press and
assembly and petition.

Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the
people of these Islands and won at so dear a cost, should now be protected and carried forward as
one would protect and preserve the covenant of liberty itself.

Next comes the period of American-Filipino cooperative effort. The Constitution of the United States
and the State constitutions guarantee to the right of freedom of speech and press and the right of
assembly and petition. We are therefore, not surprised to find President McKinley in that Magna

539
Charta of Philippine Liberty, the Instructions to the Second Philippine Commission, of April 7, 1900,
laying down the inviolable rule "That no law shall be passed abridging the freedom of speech or of
the press or of the rights of the people to peaceably assemble and petition the Government for a
redress of grievances."

The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of
August 29, 1916, in the nature of organic acts for the Philippines, continued this guaranty. The words
quoted are not unfamiliar to students of Constitutional Law, for they are the counterpart of the first
amendment to the Constitution of the United States, which the American people demanded before
giving their approval to the Constitution.

We mention the foregoing facts only to deduce the position never to be forgotten for an instant that
the guaranties mentioned are part and parcel of the Organic Law — of the Constitution — of the
Philippine Islands.

These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language
carries with all the applicable jurisprudence of great English and American Constitutional cases.
(Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are
these principles? Volumes would inadequately answer. But included are the following:

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Completely 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 an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and the dignity of the individual be exalted. Of course, criticism
does not authorize defamation. Nevertheless, as the individual is less than the State, so must
expected criticism be born for the common good. Rising superior to any official or set of officials, to
the Chief of Executive, to the Legislature, to the Judiciary — to any or all the agencies of
Government — public opinion should be the constant source of liberty and democracy. (See the well
considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F.,
372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)

The guaranties of a free speech and a free press include the right to criticize judicial conduct. The
administration of the law is a matter of vital public concern. Whether the law is wisely or badly
enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the
peace or a judge the same as any other public officer, public opinion will be effectively muzzled.
Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest
sort. The sword of Damocles in the hands of a judge does not hang suspended over the individual
who dares to assert his prerogative as a citizen and to stand up bravely before any official. On the
contrary, it is a duty which every one owes to society or to the State to assist in the investigation of
any alleged misconduct. It is further the duty of all who know of any official dereliction on the part of
a magistrate or the wrongful act of any public officer to bring the facts to the notice of those whose
duty it is to inquire into and punish them. In the words of Mr. Justice Gayner, who contributed so
largely to the law of libel. "The people are not obliged to speak of the conduct of their officials in
whispers or with bated breath in a free government, but only in a despotism." (Howarth vs. Barlow
[1906], 113 App. Div., N. Y., 510.)

The right to assemble and petition is the necessary consequence of republican institutions and the
complement of the part of free speech. Assembly means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs. Petition means that any person or group of
persons can apply, without fear of penalty, to the appropriate branch or office of the government for

540
a redress of grievances. The persons assembling and petitioning must, of course, assume
responsibility for the charges made.

Public policy, the welfare of society, and the orderly administration of government have demanded
protection for public opinion. The inevitable and incontestable result has been the development and
adoption of the doctrine of privilege.

The doctrine of privileged communications rests upon public policy, 'which looks to the free
and unfettered administration of justice, though, as an incidental result, it may in some
instances afford an immunity to the evil-disposed and malignant slanderer.' (Abbott vs.
National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.)

Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to
qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof of
malice. The rule is thus stated by Lord Campbell, C. J.

A communication made bona fide upon any subject-matter in which the party communicating
has an interest, or in reference to which has a duty, is privileged, if made to a person having
a corresponding interest or duty, although it contained criminatory matter which without this
privilege would be slanderous and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N.
S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)

A pertinent illustration of the application of qualified privilege is a complaint made in good faith and
without malice in regard to the character or conduct of a public official when addressed to an officer
or a board having some interest or duty in the matter. Even when the statements are found to be
false, if there is probable cause for belief in their truthfulness and the charge is made in good faith,
the mantle of privilege may still cover the mistake of the individual. But the statements must be made
under an honest sense of duty; a self-seeking motive is destructive. Personal injury is not necessary.
All persons have an interest in the pure and efficient administration of justice and of public affairs.
The duty under which a party is privileged is sufficient if it is social or moral in its nature and this
person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The
privilege is not defeated by the mere fact that the communication is made in intemperate terms. A
further element of the law of privilege concerns the person to whom the complaint should be made.
The rule is that if a party applies to the wrong person through some natural and honest mistake as to
the respective functions of various officials such unintentional error will not take the case out of the
privilege.

In the usual case malice can be presumed from defamatory words. Privilege destroy that
presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home to
the defendant the existence of malice as the true motive of his conduct. Falsehood and the absence
of probable cause will amount to proof of malice. (See White vs. Nicholls [1845], 3 How., 266.)

A privileged communication should not be subjected to microscopic examination to discover grounds

of malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over
privileged communications. The ultimate test is that of bona fides. (See White vs. Nicholls [1845], 3
How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72;
Street Foundations of Legal Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various
citations; 25 Cyc. pages 385 et seq.)

Having ascertained the attitude which should be assumed relative to the basic rights of freedom of
speech and press and of assembly and petition, having emphasized the point that our Libel Law as a

541
statute must be construed with reference to the guaranties of our Organic Law, and having sketched
the doctrine of privilege, we are in a position to test the facts of this case with these principles.

It is true that the particular words set out in the information, if said of a private person, might well be
considered libelous per se. The charges might also under certain conceivable conditions convict one
of a libel of a government official. As a general rule words imputing to a judge or a justice of the
peace dishonesty or corruption or incapacity or misconduct touching him in his office are actionable.
But as suggested in the beginning we do not have present a simple case of direct and vicious
accusations published in the press, but of charges predicated on affidavits made to the proper
official and thus qualifiedly privileged. Express malice has not been proved by the prosecution.
Further, although the charges are probably not true as to the justice of the peace, they were believed
to be true by the petitioners. Good faith surrounded their action. Probable cause for them to think
that malfeasance or misfeasance in office existed is apparent. The ends and the motives of these
citizens— to secure the removal from office of a person thought to be venal — were justifiable. In no
way did they abuse the privilege. These respectable citizens did not eagerly seize on a frivolous
matter but on instances which not only seemed to them of a grave character, but which were
sufficient in an investigation by a judge of first instance to convince him of their seriousness. No
undue publicity was given to the petition. The manner of commenting on the conduct of the justice of
the peace was proper. And finally the charges and the petition were submitted through reputable
attorneys to the proper functionary, the Executive Secretary. In this connection it is sufficient to note
that justices of the peace are appointed by the Governor-General, that they may be removed by the
Governor-General upon the recommendation of a Judge of First Instance, or on the Governor-
General's own motion, and that at the time this action took place the Executive Bureau was the office
through which the Governor-General acted in such matter. (See Administrative Code of 1917, secs.
203 and 229, in connection with the cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of Harrison
vs. Bush, 5 E. and B., 344, holding that where defendant was subject to removal by the sovereign, a
communication to the Secretary of State was privileged.)

The present facts are further essentially different from those established in other cases in which
private individuals have been convicted of libels of public officials. Malice, traduction, falsehood,
calumny, against the man and not the officer, have been the causes of the verdict of guilty. (See U.
S. vs. Senado [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo
[1915], 29 Phil., 595.)

The Attorney-General bases his recommendation for confirmation on the case of the United States
vs. Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos case, the Attorney-General says, is identical
with the Felipe Bustos case, with the exception that there has been more publicity in the present
instance and that the person to whom the charge was made had less jurisdiction than had the
Secretary of Justice in the Julio Bustos case. Publicity is immaterial if the charge against Punsalan is
in fact a privileged communication. Moreover, in the Julio Bustos case we find wild statements, with
no basis in fact, made against reputable members of the judiciary, "to persons who could not furnish
protection." Malicious and untrue communications are not privileged. A later case and one more
directly in point to which we invite especial attention is United States vs. Galeza ([1915], 31 Phil.,
365). (Note alsoYancey vs. Commonwealth [1909], 122 So. W., 123.)

We find the defendants and appellants entitled to the protection of the rules concerning qualified
privilege, growing out of constitutional guaranties in our bill of rights. Instead of punishing citizens for
an honest endeavor to improve the public service, we should rather commend them for their good
citizenship. The defendants and appellants are acquitted with the costs de officio. So ordered.

G.R. No. 46551 December 12, 1939

542
THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,
vs.
SALVADOR ALARCON, ET AL., accused.
FEDERICO MANGAHAS, respondent-appellant.

Araneta, Zaragoza & Araneta for appellant.

Assistant Solicitor-General Salvador Abad Santos for appellee.

LAUREL, J.:

As an aftermath of the decision rendered by the Court of first Instance of Pampanga in criminal case
No. 5733, The People of the Philippines vs. Salvador Alarcon, et al., convicting the accused therein
— except one — of the crime of robbery committed in band, a denunciatory letter, signed by Luis M.
Taruc, was addressed to His Excellency, the President of the Philippines. A copy of said letter found
its way to the herein respondent, Federico Mañgahas who, as columnist of the Tribune, a newspaper
of general circulation in the Philippines, quoted the letter in an article published by him in the issue of
that paper of September 23, 1937. The objectionable portion is inserted in the following petition of
the provincial fiscal of Pampanga, filed with the Court of First Instance of that province on
September 29, 1937:

PETICION PARA QUE FEDERICO MAÑGAHAS SEA CASTIGADO POR DESACATO

Comparece el fiscal provincial que suscribe y al Hon. Juzgado, como motivos de accion,
restuosamente alega:

1.º Que el 23 de julio de 1937, el que suscribe presento una querella en la causa arriba titulada, por
el delito de ROBO EN CUADRILLA, habiendose celebrado la vista de esta causa durante los dias
28, 29 y 30 del mismo mes y año;

2.º Que el 2 de agosto de 1937, el Hon. Juzgado dicto su decision declarando culpables a los
cincuenta y dos acusados, y condenando al acusado Ricardo Serrano 1.º como jefe de la cuadrilla,
a una pena indeterminada no menor de cuatro meses de arresto mayor, ni mayor de cuatro años de
prision correccional, y a todos los demas acusados a una pena indeterminada no menor de cuatro
meses de arresto mayor, ni mayor de cuatro añ os de prision correccional, y a todos los demas
acusados a una pena indeterminada no menor de dos meses y un dia de arresto mayor, ni mayor
de tres años, ocho meses y un dia de prision correccional y al pago proporcional de las costas;

3.º Que el 9 de agosto de 1937, no estando conformes de esta decision, los referidos acusados
presentaron su escrito de apelacion para ante la Corte de Apelaciones;

4.º Que el 23 de septiembre de 1937, el recurrido Federico Mangahas escribio, redacto, imprimio y
publico e hizo que se publicara en el periodico diario The Tribune que se edite en la Ciudad de
Manila y de general circulacion en las Islas Filipinas, en su numero correspondiente a dicha fecha,
un articulo que hacia referencia a este Hon. Juzgado y a la actuacion de este en esta causa, cuyo
articulo en parte es del tenor siguiente:

'Fifty-two (52) tenants in Floridablanca, Pampanga, have been charged and convicted on a trumped
up charge of robbery in band because they took each a few cavans of palay for which they issued

543
the corresponding receipts, from the bodega in the hacienda where they are working. These tenants
contend that they have the right to take the palay for their food as the hacienda owner has the
obligation to give them rations of palay for their maintenance and their families to be paid later with
their share of their crop. But this is not all. When the convicted tenants appealed the case and were
released on bail pending their appeal, court and public officials exerted pressure upon one of their
bondsmen, as this bondsman informed the tenants, to withdraw his bail for them, and the fifty-two
tenants were arrested again and put in jail.'
lawphil.net

5.º Que la publicacion de este articulo acotado constituye un verdadero desacato al Tribunal, porque
tiene por objeto obstaculizar la recta administracion de justicia, y tiende, ademas, a impresionar en
el animo del Tribunal y a ejercer influencia en la decision que se dictare en este causa;

6.º Que la publicacion de dicho articulo es igualmente un verdadero desacato a este Hon. Juzgado,
por ser completamente falsos y tendenciosos los hechos expuestos en el mismo como hechos
ejecutados por este Hon. Juzgado;

7.º Que el recurrido Federico Mangahas con dicho articulo acotado, voluntaria, maliciosa y
deliberadamente trato y se propuso atacar la honra, virtud y reputacion de este Hon. Juzgado
exponiendolo el menosprecio y ridiculo del publico por las imputaciones falsas, maliciosas y
difamatorias contenidas en dicho articulo.

Por tanto, pide se sirva ordenar el emplazamiento del recurrido Federico Mangahas, c/o
T.V.T. Publishing Corporation, Calle Florentino Torres, Manila, para que comparezca ante
este Hon. Juzgado y conteste a la presente peticion, y, previos los tramites legales, dicho
recurido sea castigado por desacato. Pide igualmente se sirva dictar cualquier otra
resolucion que en derecho proceda.

San Fernando, Pampanga, septiembre 23, 1937.

On the same date, the lower court ordered the respondent to appear and show cause. The
respondent appeared and filed an answer, alleging:

1. That he did not draft and write the paragraph above quoted in the petition of the Provincial
Fiscal, but the same is merely a part of a letter addressed to the President of the Philippines,
certified copy of which is hereto attached, and marked Exhibit "1."

2. That he caused the said letter to be copied without comments or remarks as may be seen
from the attached issue of the "The Tribune" on September 23, 1937, marked Exhibit "2."

3. That in having the said letter copied it was not the intention, much less the purpose and
design of the respondent to attack the honor, virtue and reputation of this Honorable Court
but merely cited it as an instance of the popular tendency to resort to the President in
everything.

4. That far from reflecting on the honor, virtue and reputation of this Honorable Court, the
publication of the letter to the President simply constitutes an indirect criticism of the
methods of the Popular Front in building up its political prestige.

5. That the publication of the letter in question did not and does not embarrass, impede,
intimidate or influence this Honorable Court in the exercise of its judicial functions, or prevent
an impartial trial in this case, inasmuch as the case has already been decided.

544
 6. That the respondent alleges that this case is no longer pending before this Hon. Court and
therefore the Court has lost its jurisdiction over it.

7. The respondents contends that the portion of the article quoted by the provincial fiscal in
his petition for contempt does not constitute contempt of court because it does not attack nor
question the judgment of the Court but only explain the side of the defendant.

8. "The general rule is that to constitute any publication a contempt it must have reference to
a matter then pending in court, and be of a character tending to the injury of pending
proceeding before if and of the subsequent proceeding. It is accordingly held that libelous
comments upon a sentence already passed in a criminal proceeding is not a contempt."
(Percival v. State, 45 Neb., 741 50 Am. St. Rept., 568; 64 NW. 221; 68 L. R.A., 255.)

9. "But comment upon the lower court's decision was held not contemptous because relating
to a concluded matter, in Re Dalton, 46 Jan., 256; 26 Pac., 673 and Dumhan v. State, 6
Iowa, 245; although the case was then pending on appeal." (68 L.R.A., 262.) (Underlining
ours.)

10. That the publication of the letter in question is in line with the constitutional guarantee of
freedom of the press.

On November 29, 2937, the lower court entered an order, the dispositive part of which read thus:

Considerando, sin embargo, todas las circunstancias del case, el Juzgado solamente
impone al recurrido una multa nominal de P25, o en case de insolvencia, cinco dias de
prision sin perjuico de la accion por libelo que el fiscal creyere conviniente incoar contra Luis
M. Taruc.

Asi se ordena.

Respondent Mañgahas appealed from this order to the Court of Appeals — which later certified the
case to this Court as involving only a question of law — assigning the following errors allegedly
committed by the trial court;

I. The lower court erred in finding the respondent guilty of contempt of court.

II. The lower court erred in considering the letter quoted in the article in question as falling
under the Rules on the Investigation of Judges of First Instance.

III. The lower court erred in taking jurisdiction of the motion for contempt.

Consideration of the first error is all that is necessary as the same will lead incidentally to the
disposition of the other two.

The elements of contempt by newspaper publications are well defined by the cases adjudicated in
this as in other jurisdictions. Newspaper publications tending 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 the courts. The rule is otherwise after the cause is
ended. (In re Lozano and Quevedo, 54 Phil., 801; In re Abistado, 57 Phil., 668.) It must, however,
clearly appear that such publications do impede, interfere with, and embarrass the administration of
justice before the author of the publications should be held for contempt. (Nixon v. State 207 Ind.,

545
426, 193 N.E., 591, 97 A.L.R., 894.) What is thus sought to be shielded against the influence of
newspaper comments is the all-important duty of the court to administer justice in the decision of a
pending case. There is no pending case to speak of when and once the court has come upon a
decision and has lost control either to reconsider or amend it. That, we believe, is the case at bar, for
here we have a concession that the letter complained of was published after the Court of First
Instance of Pampanga had decided the aforesaid criminal case for robbery in band, and after that
decision had been appealed to the Court of Appeals. The fact that a motion to reconsider its order
confiscating the bond of the accused therein was subsequently filed may be admitted; but, the
important consideration is that it was then without power to reopen or modify the decision which it
had rendered upon the merits of the case, and could not have been influenced by the questioned
publication.

If it be contended, however, that the publication of the questioned letter constitutes contempt of the
Court of Appeals where the appeal in the criminal case was then pending, as was the theory of the
provincial fiscal below which was accepted by the lower court, we take the view that in the
interrelation of the different courts forming our integrated judicial system, one court is not an agent or
representative of another and may not, for this reason, punish contempts in vindication of the
authority and decorum which are not its own. The appeal transfer the proceedings to the appellate
court, and this last word becomes thereby charged with the authority to deal with contempts
committed after the perfection of the appeal.

The Solicitor-General, in his brief, suggests that "even if there had been nothing more pending
before the trial court, this still had jurisdiction to punish the accused for contempt, for the reason that
the publication scandalized the court. (13 C.J., p. 37, 45; 6 R.C.L., 513.)" The rule suggested, which
has its origin at common law, is involved in some doubt under modern English law and in the United
States, "the weight of authority, however, is clearly to the effect that comment upon concluded cases
is unrestricted under our constitutional guaranty of the liberty of the press." (Annotations, 68 L.R.A.,
255.) Other considerations argue against our adoption of the suggested holding. As stated, the rule
imported into this jurisdiction is that "newspaper publications tending to impede, obstruct, embarrass,
or influence the courts in administering justice in a pending suit or proceeding constitute criminal
contempt which is summarily punishable by the courts; that the rule is otherwise after the case is
ended." (In re Lozano and Quevedo, supra; In re Abistado, supra.) In at least two instances, this
Court has exercised the power to punish for contempt "on the preservative and on the vindicative
principle" (Villavicencio vs. Lukban, 39 Phil., 778), "on the corrective and not on the retaliatory idea
of punishment". In re Lozano and Quevedo, supra.) Contempt of court is in the nature of a criminal
offense (Lee Yick Hon vs. Collector of Customs, 41 Phil., 548), and in considering the probable
effects of the article alleged to be contemptuous, every fair and reasonable inference consistent with
the theory of defendant's innocence will be indulged (State v. New Mexican Printing Co., 25 N. M.,
102, 177 p. 751), and where a reasonable doubt in fact or in law exists as to the guilt of one of
constructive contempt for interfering with the due administration of justice the doubt must be
resolved in his favor, and he must be acquitted. (State v. Hazeltine, 82 Wash., 81, 143 p. 436.) The
appealed order is hereby reversed, and the respondent acquitted, without pronouncement as to
costs. So ordered.

Avanceña, C.P., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

G.R. No. 82380 April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM

PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.

546
G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,

vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court
of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

FELICIANO, J.:

Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer
Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful
struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V.
Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan
Ponce Enrile, who had played major roles in the events proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie
Television Review and Classification Board as wel as the other government agencies consulted.
General Fidel Ramos also signified his approval of the intended film production.

In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce
Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out
below:

The Four Day Revolution is a six hour mini-series about People Power—a unique
event in modern history that-made possible the Peaceful revolution in the Philippines
in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David
Williamson and history Prof Al McCoy have chosen a "docu-drama" style and created
[four] fictitious characters to trace the revolution from the death of Senator Aquino, to
the Feb revolution and the fleeing of Marcos from the country.

These character stories have been woven through the real events to help our huge
international audience understand this ordinary period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major
network. Tony reflects the average American attitude to the Phihppinence —once a
colony, now the home of crucially important military bases. Although Tony is aware of
the corruption and of Marcos' megalomania, for him, there appears to be no
alternative to Marcos except the Communists.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly
caught up in the events as it becomes dear that the time has come for a change.
Through Angle and her relationship with one of the Reform Army Movement Colonels
(a fictitious character), we follow the developing discontent in the armed forces. Their
dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately
their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila

newspaper who despises the Marcos regime and is a supporter an promoter of Cory
Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of

547
 the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in
love with Tony. Ultimately, she must choose between her love and the revolution.

Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and thintertwining series of events and characters
that triggered these remarkable changes. Through them also, we meet all of the
principal characters and experience directly dramatic recreation of the revolution.
The story incorporates actual documentary footage filmed during the period which we
hope will capture the unique atmosphere and forces that combined to overthrow
President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful

plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films
(The Year of Living Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a

deep understanding of the Philippines, who has worked on the research for this
project for some 18 months. Together with Davi Wilhamgon they have developed a
script we believe accurately depicts the complex issues and events that occurred
during th period .

The six hour series is a McElroy and McElroy co-production with Home Box Office in
American, the Australian Broadcast Corporation in Australia and Zenith Productions
in the United Kingdom

The proposed motion picture would be essentially a re-enact. ment of the events that made possible
the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented
in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and
utilizing actual documentary footage as background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of
the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member
of his family in any cinema or television production, film or other medium for advertising or
commercial exploitation" and further advised petitioners that 'in the production, airing, showing,
distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or
visual) should not be made to [him] or any member of his family, much less to any matter purely
personal to them.

It appears that petitioners acceded to this demand and the name of private respondent Enrile was
deleted from the movie script, and petitioners proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary
Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case
No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four
Day Revolution". The complaint alleged that petitioners' production of the mini-series without private
respondent's consent and over his objection, constitutes an obvious violation of his right of privacy.
On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for
hearing the application for preliminary injunction.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for
Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan
Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint

548
on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss
alleging lack of cause of action as the mini-series had not yet been completed.

In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against
the petitioners, the dispositive portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants,

and all persons and entities employed or under contract with them, including actors,
actresses and members of the production staff and crew as well as all persons and
entities acting on defendants' behalf, to cease and desist from producing and filming
the mini-series entitled 'The Four Day Revolution" and from making any reference
whatsoever to plaintiff or his family and from creating any fictitious character in lieu of
plaintiff which nevertheless is based on, or bears rent substantial or marked
resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the
production and any similar film or photoplay, until further orders from this Court, upon
plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever
damages defendants may suffer by reason of the injunction if the Court should finally
decide that plaintiff was not entitled thereto.

xxx xxx xxx

(Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated
21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition
was docketed as G.R. No. L-82380.

A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari
with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed
as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was
required to file a consolidated Answer. Further, in the same Resolution, the Court granted a
Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order
of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners
to resume producing and filming those portions of the projected mini-series which do not make any
reference to private respondent or his family or to any fictitious character based on or respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a
right of privacy.

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners'
claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech
and of expression protected under our Constitution. Private respondent, upon the other hand,
asserts a right of privacy and claims that the production and filming of the projected mini-series
would constitute an unlawful intrusion into his privacy which he is entitled to enjoy.

Considering first petitioners' claim to freedom of speech and of expression the Court would once
more stress that this freedom includes the freedom to film and produce motion pictures and to

549
exhibit such motion pictures in theaters or to diffuse them through television. In our day and age,
motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along
with the press, radio and television, motion pictures constitute a principal medium of mass
communication for information, education and entertainment. In Gonzales v. Katigbak, 3former Chief
Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas
and the expression of the artistic impulse. Their effect on the perception by our
people of issues and public officials or public figures as well as the pre cultural traits
is considerable. Nor as pointed out in Burstyn v. Wilson(343 US 495 [19421) 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' (Ibid, 501). 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.
...4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture
companies. Furthermore the circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech
and of expression. In our community as in many other countries, media facilities are owned either by
the government or the private sector but the private sector-owned media facilities commonly require
to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our country and hence to exclude
commercially owned and operated media from the exerciseof constitutionally protected om of
speech and of expression can only result in the drastic contraction of such constitutional liberties in
our country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime

ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right
of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in
differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right
of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been
regarded as permissible where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of
privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The
interest sought to be protected by the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an
individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to
privacy in a context which included a claim to freedom of speech and of
expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family
of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a
motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party
for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for
whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men
were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement
against the licensee who had produced the motion picture and exhibited it but refused to pay the
stipulated royalties, the Court, through Justice Melencio-Herrera, said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and
void for lack of, or for having an illegal cause or consideration, while it is true that

550
 petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did
not dispense with the need for prior consent and authority from the deceased heirs to
portray publicly episodes in said deceased's life and in that of his mother and the
member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31
LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a
deperson to protect his memory, but the privilege wts for the benefit of the living, to
protect their feelings and to preventa violation of their own rights in the character and
memory of the deceased.'

Petitioners averment that private respondent did not have any property right over the
life of Moises Padilla since the latter was a public figure, is neither well taken. Being
a public figure ipso facto does not automatically destroy in toto a person's right to
privacy. The right to invade a person's privacy to disseminate public information does
not extend to a fictional or novelized representation of a person, no matter how public
a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549
[1951]). In the case at bar, while it is true that petitioner exerted efforts to present a
true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance
in the film because without it, it would be a drab story of torture and brutality. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to
freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the
name of freedom of speech and expression, a right to produce a motion picture biography at least
partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties
to the widow and family of Padilla. In rejecting the licensee's claim, the Court said:

Lastly, neither do we find merit in petitioners contention that the Licensing Agreement
infringes on the constitutional right of freedom of speech and of the press, in that, as
a citizen and as a newspaperman, he had the right to express his thoughts in film on
the public life of Moises Padilla without prior restraint.The right freedom of
expression, indeed, occupies a preferred position in the "hierarchy of civil liberties"
(Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales
v. Commission on Elections, 27 SCRA 835, 858 [1960]:

xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and the press,
which includes such vehicles of the mass media as radio, television and the movies,
is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of
Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed
consideration of the interplay of interests observable in given situation or type of
situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v.
Commission on Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by
respondent and the right of freedom of expression invoked by petitioner. taking into
account the interplay of those interests, we hold that under the particular
circumstances presented, and considering the obligations assumed in the Licensing
Agreement entered into by petitioner, the validity of such agreement will have to be
upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern." 13

551
Whether the "balancing of interests test" or the clear and present danger test" be applied in respect
of the instant Petitions, the Court believes that a different conclusion must here be reached: The
production and filming by petitioners of the projected motion picture "The Four Day Revolution" does
not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's
"right of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct
restraint on the part of the respondent Judge upon the exercise of speech and of expression by
petitioners. The respondent Judge has restrained petitioners from filming and producing the entire
proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any
kind imposed upon the movie producer who in fact completed and exhibited the film biography of
Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity
vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent
liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms.
The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary
Restraining Order one day after filing of a complaint by the private respondent and issuing a
Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet
uncompleted and hence not exhibited to any audience. Neither private respondent nor the
respondent trial Judge knew what the completed film would precisely look like. There was, in other
words, no "clear and present danger" of any violation of any right to privacy that private respondent
could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government
that took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led
up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it
is, petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the
history of this countryand as such, must be regarded as having passed into the public domain and
as an appropriate subject for speech and expression and coverage by any form of mass media. The
subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not
relate to the individual life and certainly not to the private life of private respondent Ponce Enrile.
Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least
his immediate family, what we have here is not a film biography, more or less fictionalized, of private
respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon,
the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by
Juan Ponce Enrile in the precipitating and the constituent events of the change of government in
February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be
entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in
character. The extent of that intrusion, as this Court understands the synopsis of the proposed film,
may be generally described as such intrusion as is reasonably necessary to keep that film a truthful
historical account. Private respondent does not claim that petitioners threatened to depict in "The
Four Day Revolution" any part of the private life of private respondent or that of any member of his
family.

4. At all relevant times, during which the momentous events, clearly of public concern, that
petitioners propose to film were taking place, private respondent was what Profs. Prosser and
Keeton have referred to as a "public figure:"

A public figure has been defined as a person who, by his accomplishments, fame, or
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

552
 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 entertainment. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even ordinary soldiers, an
infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position where public attention is
focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their tight to
privacy. Three reasons were given, more or less indiscrimately, in the decisions" that
they had sought publicity and consented to it, and so could not complaint when they
received it; that their personalities and their affairs has already public, and could no
longer be regarded as their own private business; and that the press had a privilege,
under the Constitution, to inform the public about those who have become legitimate
matters of public interest. On one or another of these grounds, and sometimes all, it
was held that there was no liability when they were given additional publicity, as to
matters legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was
held to arise out of the desire and the right of the public to know what is going on in
the world, and the freedom of the press and other agencies of information to tell
it. "News" includes all events and items of information which are out of the ordinary
hum-drum routine, and which have 'that indefinable quality of information which
arouses public attention.' To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definination
of news, as a glance at any morning newspaper will sufficiently indicate. It includes
homicide and othe crimes, arrests and police raides, suicides, marriages and
divorces, accidents, a death from the use of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old girl, the reappearance of one supposed to
have been murdered years ago, and undoubtedly many other similar matters of
genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the
dissemination of news in the scene of current events. It extended also to information
or education, or even entertainment and amusement, by books, articles, pictures,
films and broadcasts concerning interesting phases of human activity in general, as
well as the reproduction of the public scene in newsreels and travelogues. In
determining where to draw the line, the courts were invited to exercise a species of
censorship over what the public may be permitted to read; and they were
understandably liberal in allowing the benefit of the doubt. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal
actor in the culminating events of the change of government in February 1986. Because his
participation therein was major in character, a film reenactment of the peaceful revolution that fails to
make reference to the role played by private respondent would be grossly unhistorical. The right of
privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private
respondent has not retired into the seclusion of simple private citizenship. he continues to be a
"public figure." After a successful political campaign during which his participation in the EDSA
Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very
public place, the Senate of the Philippines.

553
5. The line of equilibrium in the specific context of the instant case between the constitutional
freedom of speech and of expression and the right of privacy, may be marked out in terms of a
requirement that the proposed motion picture must be fairly truthful and historical in its presentation
of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the
participation of private respondent in the EDSA Revolution. 16 There must, further, be no
presentation of the private life of the unwilling private respondent and certainly no revelation of
intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what
Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern."
18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private
respondent in the EDSA Revolution to those events which are directly and reasonably related to
the public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be
regarded as unreasonable and actionable. Such portrayal may be carried out even without a license
from private respondent.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a
Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan
vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion
for Pictures Production" enjoining him and his production company from further filimg any scene of
the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and
paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case
No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to
the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the
complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent
herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private
respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately
engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity"
between private respondent's complaint and that on Honasan in the construction of their legal basis
of the right to privacy as a component of the cause of action is understandable considering that court
pleadings are public records; that private respondent's cause of action for invasion of privacy is
separate and distinct from that of Honasan's although they arose from the same tortious act of
petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases
on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413
are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the
question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum
shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan
who, having refused to subject himself to the legal processes of the Republic and having become
once again in fugitive from justice, must be deemed to have forfeited any right the might have had to
protect his privacy through court processes.

WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of
respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited
Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by

554
enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made
PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate
Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the
exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and
accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988
and any Preliminary Injunction that may have been issued by him.

No pronouncement as to costs.

SO ORDERED.

ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO

SOLIVEN, petitioners, vs. COURT OF APPEALS and FRANCISCO
WENCESLAO, respondents.

DECISION

"The question is not so much as who was aimed at as who was hit." (Pound, J.,
in Corrigan v. Bobbs-Merill Co., 228 N.Y. 58 [1920]).

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 bestirs 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.
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

555
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 Sub-Committee on
Industrial Policy.
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] -

31 May 1989

556
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.

19 June 1989

x x x 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 from 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, thats 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.

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
mans dubious deals. His notoriety, according to reliable sources, has reached the
Premier Guest House where his name is spoken like dung.

xxx

557
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

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 'organizers' exploits from this corner
soon.

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
round-the-table discussions with people from the business, export and -- his favorite --
the garments sector.

xxx

The 'organizers' principal gamely went along, thinking that his 'consultant' had
nothing but the good of these sectors in mind. It was only later that he realized that
the 'consultant' was acting with a burst of energy 'in aid of extortion.'The
'consultant' was fired.

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

A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks
and influence-peddlers from entering the premises of his department. But the Cabinet
558
man might not get his wish. There is one 'organizer' who, even if physically banned,
can 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.

3 July 1989

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

The conference was doomed from the start. It was bound to fail. The personalities who
count in the field of transportation 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 Borjals columns.[4] In a subsequent letter to The
Philippine Star, private respondent refuted the matters contained in petitioner Borjals 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

559
7 August 1990, the Assistant Prosecutor handling the case dismissed the complaint for
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 attorneys 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 attorneys 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 petitioners 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 office 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 courts 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
facie evidence which is significantly less than the preponderance of evidence required in civil

560
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 courts 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 the Jaywalker 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" (italics supplied).[11] Neither 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 -

561
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 x x x[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,
legislative 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 x x x without any comments or remarks." But this is
incorrect.
562
 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
or justifiable motive. To this genre belong "private communications" and "fair and true report
without any comments or remarks."
Indisputably, petitioner Borjals 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[21] and 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

563
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.[24]
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 -

x x x x 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 offical" 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
564
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'etre 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 -

x x x x 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 an 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 become less so merely because a private
individual is involved or because in some sense the individual did not voluntarily choose to become
involved. The publics 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

565
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

566
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. Noel[47] 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.

567
 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-censorshipbecomes the ideal mean for, as Mr.
Justice Frankfurter has warned, "[W]ithout x x x 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 unrestricted 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 counsels 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 speak sub 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.

568
 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.

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. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.: ñé+.£ªwph! 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 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

569
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, 12 prosecution 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 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

570
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 plaintiff-municipality.
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

571
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 Anti-Bases 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." 36 There 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,

572
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.' " 40 Assistant
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

573
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.

G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of
the Court of Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing
his complaint for injunctive relief. He invokes, in particular, the guaranty against unreasonable
searches and seizures of the Constitution, as well as its prohibition against deprivation of property
without due process of law. There is no controversy as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor

of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics
Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan
Police Force of Manila, seized and confiscated from dealers, distributors, newsstand
owners and peddlers along Manila sidewalks, magazines, publications and other
reading materials believed to be obscene, pornographic and indecent and later
burned the seized materials in public at the University belt along C.M. Recto Avenue,
Manila, in the presence of Mayor Bagatsing and several officers and members of
various student organizations.

574
Among the publications seized, and later burned, was "Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of
the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to enjoin
and/or restrain said defendants and their agents from confiscating plaintiffs
magazines or from otherwise preventing the sale or circulation thereof claiming that
the magazine is a decent, artistic and educational magazine which is not per
se obscene, and that the publication is protected by the Constitutional guarantees of
freedom of speech and of the press.

By order dated December 8, 1 983 the Court set the hearing on the petition for
preliminary injunction on December 14,1983 and ordered the defendants to show
cause not later than December 13, 1983 why the writ prayed for should not be
granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary
restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's
"Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction
in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign.
The Court granted the temporary restraining order on December 14, 1983.

In his Answer and Opposition filed on December 27,1983 defendant Mayor

Bagatsing admitted the confiscation and burning of obscence reading materials on
December 1 and 3, 1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that the said confiscation
and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No.
969, which amended Article 201 of the Revised Penal Code. In opposing the
plaintiffs application for a writ of preliminary injunction, defendant pointed out that in
that anti- smut campaign conducted on December 1 and 3, 1983, the materials
confiscated belonged to the magazine stand owners and peddlers who voluntarily
surrendered their reading materials, and that the plaintiffs establishment was not
raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the
writ of preliminary injunction, raising the issue as to "whether or not the defendants
and/or their agents can without a court order confiscate or seize plaintiffs magazine
before any judicial finding is made on whether said magazine is obscene or not".

The restraining order issued on December 14,1983 having lapsed on January

3,1984, the plaintiff filed an urgent motion for issuance of another restraining order,
which was opposed by defendant on the ground that issuance of a second
restraining order would violate the Resolution of the Supreme Court dated January
11, 1983, providing for the Interim Rules Relative to the Implementation of Batas
Pambansa Blg. 129, which provides that a temporary restraining order shall be
effective only for twenty days from date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in

support of his opposition to the issuance of a writ of preliminary injunction.

575
 On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 "for the parties to adduce evidence on the question of whether the
publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned
by the defendants, are obscence per se or not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given
three days "to file a reply to defendants' opposition dated January 9, 1984, serving a
copy thereof to the counsel for the defendants, who may file a rejoinder within the
same period from receipt, after which the issue of Preliminary Injunction shall be
resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed
his Comment on plaintiff s supplemental Memorandum on January 20, 1984, and
plaintiff filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying
the motion for a writ of preliminary injunction, and dismissing the case for lack of
merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art.
IV), and the protection afforded by the constitution against unreasonable searches
and seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of
the press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws
punishing the author, publishers and sellers of obscene publications (Sec. I , Art.
201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well
settled is the rule that the right against unreasonable searches and seizures
recognizes certain exceptions, as when there is consent to the search or seizure,
(People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs.
Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or
movable structure (See Papa vs. Magno, 22 SCRA 857).3

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the police officers could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of their determination that they
are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the trial court could dismiss the case on its merits without any hearing
thereon when what was submitted to it for resolution was merely the application of
petitioner for the writ of preliminary injunction.4

The Court states at the outset that it is not the first time that it is being asked to pronounce what
"obscene" means or what makes for an obscene or pornographic literature. Early on, in People vs.
Kottinger,5 the Court laid down the test, in determining the existence of obscenity, as follows:
"whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose

576
minds are open to such immoral influences and into whose hands a publication or other article
charged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which
shocks the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say,
however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances of
the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate sense
of the community reached by it." 9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a
problem that has grown increasingly complex over the years. Precisely, the question is: When does
a publication have a corrupting tendency, or when can it be said to be offensive to human
sensibilities? And obviously, it is to beg the question to say that a piece of literature has a corrupting
influence because it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave
the final say to a hypothetical "community standard" — whatever that is — and that the question
must supposedly be judged from case to case.

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article
201 of the Revised Penal Code. Go Pin, was also even hazier:

...We agree with counsel for appellant in part. If such pictures, sculptures and
paintings are shown in art exhibit and art galleries for the cause of art, to be viewed
and appreciated by people interested in art, there would be no offense committed.
However, the pictures here in question were used not exactly for art's sake but rather
for commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of secondary or
minor importance. Gain and profit would appear to have been the main, if not the
exclusive consideration in their exhibition; and it would not be surprising if the
persons who went to see those pictures and paid entrance fees for the privilege of
doing so, were not exactly artists and persons interested in art and who generally go
to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather
people desirous of satisfying their morbid curiosity and taste, and lust, and for love
for excitement, including the youth who because of their immaturity are not in a
position to resist and shield themselves from the ill and perverting effects of these
pictures.11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been
drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question
were used not exactly for art's sake but rather for commercial purposes," 12 the pictures are not
entitled to any constitutional protection.

It was People v. Padan y Alova ,13 however, that introduced to Philippine jurisprudence the
"redeeming" element that should accompany the work, to save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving
pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved the
element of art; that connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body exhibited in
sheer nakedness, as models in tableaux vivants. But an actual exhibition of the

577
 sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it,
there is no room for art. One can see nothing in it but clear and unmitigated
obscenity, indecency, and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting influence specially on
the youth of the land. ...14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the
exhibition was attended by "artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes,"15 could the same legitimately lay
claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs of [art],
and painters and sculptors might find inspiration,"16 in it, would it cease to be a case of obscenity?

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has
permitted an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and what is
art.

In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in the United
States, adopted the test: "Whether to the average person, applying contemporary standards, the
dominant theme of the material taken as a whole appeals to prurient interest."18 Kalaw-
Katigbak represented a marked departure from Kottinger in the sense that it measured obscenity in
terms of the "dominant theme" of the work, rather than isolated passages, which were central
to Kottinger (although both cases are agreed that "contemporary community standards" are the final
arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of
obscenity essentially a judicial question and as a consequence, to temper the wide
discretion Kottinger had given unto law enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from
development to development, which, states one authoritative commentator (with ample sarcasm),
has been as "unstable as it is unintelligible."19

Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one "utterly without
any redeeming social value,"21 marked yet another development.

The latest word, however, is Miller v. California,22 which expressly abandoned Massachusettes, and
established "basic guidelines,"23 to wit: "(a) whether 'the average person, applying contemporary
standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value."24

(A year later, the American Supreme Court decided Hamling v. United States 25 which
repeated Miller, and Jenkins v. Georgia, 26 yet another reiteration of Miller. Jenkins, curiously,
acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals"
portrayed on screen, although the film highlighted contemporary American sexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been
attributed to the reluctance of the courts to recognize the constitutional dimension of the problem
.27 Apparently, the courts have assumed that "obscenity" is not included in the guaranty of free
speech, an assumption that, as we averred, has allowed a climate of opinions among magistrates
predicated upon arbitrary, if vague theories of what is acceptable to society. And "[t]here is little
likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever do so
until the Court recognizes that obscene speech is speech nonetheless, although it is subject — as in

578
all speech — to regulation in the interests of [society as a whole] — but not in the interest of a
uniform vision of how human sexuality should be regarded and portrayed."28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police
power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because
one insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say,
five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H.
Lawrence were censored in the thirties yet their works are considered important literature
today.29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's
most prestigious museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said
earlier, it is the divergent perceptions of men and women that have probably compounded the
problem rather than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and has not been, an
easy one to answer, as it is far from being a settled matter. We share Tribe's disappointment over
the discouraging trend in American decisional law on obscenity as well as his pessimism on whether
or not an "acceptable" solution is in sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect"
definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced with
the problem, which, after all, is the plaint specifically raised in the petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its
protection. In free expression cases, this Court has consistently been on the side of the exercise of
the right, barring a "clear and present danger" that would warrant State interference and action.30 But,
so we asserted in Reyes v. Bagatsing,31"the burden to show the existence of grave and imminent
danger that would justify adverse action ... lies on the. . . authorit[ies]."32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such
clear and present danger."33 "It is essential for the validity of ... previous restraint or censorship that
the ... authority does not rely solely on his own appraisal of what the public welfare, peace or safety
may require."34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear
and present danger test."35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we
may arrive at one-but rather as a serious attempt to put the question in its proper perspective, that is,
as a genuine constitutional issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due
process and illegal search and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said. The burden is on the State to demonstrate the
existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State

579
action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice.
However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must
come to terms with, and be held accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof to justify a
ban and to warrant confiscation of the literature for which mandatory injunction had been sought
below. First of all, they were not possessed of a lawful court order: (1) finding the said materials to
be pornography, and (2) authorizing them to carry out a search and seizure, by way of a search
warrant.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the
state has the right to protect society from pornographic literature that is offensive to public
morals."36 Neither do we. But it brings us back to square one: were the "literature" so confiscated
"pornographic"? That we have laws punishing the author, publisher and sellers of obscence
publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No.
969),"37 is also fine, but the question, again, is: Has the petitioner been found guilty under the
statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to
seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,38 We
defined police power as "state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare ."39 Presidential Decrees Nos. 960 and 969 are,
arguably, police power measures, but they are not, by themselves, authorities for high-handed acts.
They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances
(Mr. Marcos'), from the commandments of the Constitution, the right to due process of law and the
right against unreasonable searches and seizures, specifically. Significantly, the Decrees
themselves lay down procedures for implementation. We quote:

Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature,

films, prints, engravings, sculptures, paintings, or other materials involved in the
violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be
governed by the following rules:

(a) Upon conviction of the offender, to be forfeited in favor of the Government to be

destroyed.

(b) Where the criminal case against any violator of this decree results in an acquittal,
the obscene/immoral literature, films, prints, engravings, sculptures, paintings or
other materials and articles involved in the violation referred to in Section 1 (referring
to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be
destroyed, after forfeiture proceedings conducted by the Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may,
within fifteen (15) days after his receipt of a copy of the decision, appeal the matter to
the Secretary of National Defense for review. The decision of the Secretary of
National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended
by PD No. 969.)

Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations
of Section I hereof, the penalty as provided herein shall be imposed in the maximum

580
 period and, in addition, the accessory penalties provided for in the Revised Penal
Code, as amended, shall likewise be imposed .40

Under the Constitution, on the other hand:

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 is basic that searches and seizures may be done only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-
minded the orders of the Regional Trial Court authorizing the search of the premises of We
Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have
greater reason here to reprobate the questioned raid, in the complete absence of a warrant, valid or
invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a
political case, because, and as we have indicated, speech is speech, whether political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then
prevailing), provide:

SEC. 12. Search without warrant of personarrested. — A person charged with an

offense may be searched for dangerous weapons or anything which may be used as
proof of the commission of the offense.44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the
arrest must be on account of a crime committed. Here, no party has been charged, nor are such
charges being readied against any party, under Article 201, as amended, of the Revised Penal
Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free
the accused of all criminal responsibility because there had been no warrant," 45 and that "violation of
penal law [must] be punished." 46 For starters, there is no "accused" here to speak of, who ought to
be "punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a
result of an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of
penal laws" has been committed, is to make the respondent Mayor judge, jury, and executioner
rolled into one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in
their opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are
"obscene", and pose a clear and present danger of an evil substantive enough to
warrant State interference and action;

581
 3. The judge must determine whether or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis and on His Honor's sound
discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search
warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal
Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or
not the properties seized are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or
remedies against abuse of official power under the Civil Code" 47 or the Revised Penal code .48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and
SET ASIDE. It appearing, however, that the magazines subject of the search and seizure ave been
destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and
academic.

SOCIAL WEATHER STATIONS, INCORPORATED and

KAMAHALAN PUBLISHING CORPORATION, doing business as
MANILA STANDARD, petitioners, vs. COMMISSION ON
ELECTIONS, respondent.

DECISION
MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social
research institution conducting surveys in various fields, including economics, politics,
demography, and social development, and thereafter processing, analyzing, and publicly reporting
the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the
Manila Standard, a newspaper of general circulation, which features newsworthy items of
information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on Elections from
enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days before an election.

The term election surveys is defined in 5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidates popularity, qualifications, platforms or a matter of public
582
discussion in relation to the election, including voters preference for candidates or
publicly discussed issues during the campaign period (hereafter referred to as Survey).

To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins

Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the
elections both at the national and local levels and release to the media the results of such survey
as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand,
states that it intends to publish election survey results up to the last day of the elections on May
14, 2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech without any clear and present danger to justify
such restraint. They claim that SWS and other pollsters conducted and published the results of
surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election
day without causing confusion among the voters and that there is neither empirical nor historical
evidence to support the conclusion that there is an immediate and inevitable danger to the voting
process posed by election surveys. They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast media from writing and
publishing articles concerning political issues up to the day of the election. Consequently, they
contend that there is no reason for ordinary voters to be denied access to the results of election
surveys which are relatively objective.
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and
erroneous surveys just before the election. It contends that (1) the prohibition on the publication
of election survey results during the period proscribed by law bears a rational connection to the
objective of the law, i.e., the prevention of the debasement of the electoral process resulting
from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to
meet the evils sought to be prevented; and (3) the impairment of freedom of expression is minimal,
the restriction being limited both in duration, i.e., the last 15 days before the national election and
the last 7 days before a local election, and in scope as it does not prohibit election survey results
but only require timeliness. Respondent claims that in National Press Club v. COMELEC,[1] a total
ban on political advertisements, with candidates being merely allocated broadcast time during the
so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according
to respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by
prohibiting the publication of election survey results affecting candidates within the prescribed
periods of fifteen (15) days immediately preceding a national election and seven (7) days before a
local election. Because of the preferred status of the constitutional rights of speech, expression,

583
and the press, such a measure is vitiated by a weighty presumption of invalidity.[2] Indeed, any
system of prior restraints of expression comes to this Court bearing a heavy presumption against
its constitutional validity. . . . The Government thus carries a heavy burden of showing justification
for the enforcement of such restraint.[3] There is thus a reversal of the normal presumption of
validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the
operation of media of communication, no presumption of invalidity attaches to a measure like
5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant
of power to the COMELEC under Art. IX-C, 4 is limited to ensuring equal opportunity, time,
space, and the right to reply as well as uniform and reasonable rates of charges for the use of such
media facilities for public information campaigns and forums among candidates.[4] This Court
stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may
result in some limitation of the rights of free speech and free press.[5]

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present
danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v.
COMELEC,[6] this test was originally formulated for the criminal law and only later appropriated
for free speech cases. Hence, while it may be useful for determining the validity of laws dealing
with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the
one in question. For such a test is concerned with questions of the gravity and imminence of the
danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing
and balancing the circumstances to determine whether public interest [in free, orderly, honest,
peaceful and credible elections] is served by the regulation of the free enjoyment of the rights
(page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on
voters, the creation of bandwagon effect to favor candidates, misinformation, the junking of weak
and losing candidates by their parties, and the form of election cheating called dagdag-bawas and
invoking the States power to supervise media of information during the election period (pages 11-
16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may
be seen that its limiting impact on the rights of free speech and of the press is not
unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It is limited in duration; it applies
only during the period when the voters are presumably contemplating whom they
should elect and when they are most susceptible to such unwarranted persuasion.
These surveys may be published thereafter. (Pages 17-18)

584
 The dissent does not, however, show why, on balance, these considerations should outweigh
the value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated,
the purpose of Art. IX-C, 4 is to ensure equal opportunity, time, and space and the right of reply,
including reasonable, equal rates therefor for public information campaigns and forums among
candidates. Hence the validity of the ban on media advertising. It is noteworthy that R.A. No.
9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and
broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the
censorship of all speaking by candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral
process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the challenged legislation and leaves freedom of speech,
expression, and the press with little protection. For anyone who can bring a plausible justification
forward can easily show a rational connection between the statute and a legitimate governmental
purpose. In contrast, the balancing of interest undertaken by then Justice Castro
in Gonzales v. COMELEC,[7] from which the dissent in this case takes its cue, was a strong one
resulting in his conclusion that 50-B of R.A. No. 4880, which limited the period of election
campaign and partisan political activity, was an unconstitutional abridgment of freedom of
expression.
Nor can the ban on election surveys be justified on the ground that there are other countries 78,
according to the Solicitor General, while the dissent cites 28 which similarly impose restrictions
on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in
the United States no restriction on the publication of election survey results exists. It cannot be
argued that this is because the United States is a mature democracy.Neither are there laws imposing
an embargo on survey results, even for a limited period, in other countries. As pointed out by
petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland,
Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no
older nor more mature than the Philippines in political development, do not restrict the publication
of election survey results.
What test should then be employed to determine the constitutional validity of 5.4? The United
States Supreme Court, through Chief Justice Warren, held in United States v. OBrien:

[A] government regulation is sufficiently justified [1] if it is within the

constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to
the suppression of free expression; and [4] if the incidental restriction on alleged
First Amendment freedoms [of speech, expression and press] is no greater than is
essential to the furtherance of that interest.[8]

This is so far the most influential test for distinguishing content-based from content-neutral
regulations and is said to have become canonical in the review of such laws.[9] It is noteworthy that
the OBrien test has been applied by this Court in at least two cases.[10]
Under this test, even if a law furthers an important or substantial governmental interest, it
should be invalidated if such governmental interest is not unrelated to the suppression of free
585
expression. Moreover, even if the purpose is unrelated to the suppression of free speech, the law
should nevertheless be invalidated if the restriction on freedom of expression is greater than is
necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection of
expression to the asserted governmental interest makes such interest not unrelated to the
suppression of free expression. By prohibiting the publication of election survey results because
of the possibility that such publication might undermine the integrity of the election, 5.4 actually
suppresses a whole class of expression, while allowing the expression of opinion concerning the
same subject matter by newspaper columnists, radio and TV commentators, armchair theorists,
and other opinion makers. In effect, 5.4 shows a bias for a particular subject matter, if not
viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of
freedom of expression means that the government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.[11] The inhibition of speech should be upheld
only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v.
New Hampshire,[12] thus:

There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the
insulting or fighting words those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. [S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in
order and morality.

Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v.
Minnesota,[13] it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. . . . No one would question
but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be enforced against
obscene publications. The security of the community life may be protected against
incitements to acts of violence and the overthrow by force of orderly government . . . .

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be
justified on the ground that it is only for a limited period and is only incidental. The prohibition
may be for a limited time, but the curtailment of the right of expression is direct, absolute, and
substantial. It constitutes a total suppression of a category of speech and is not made less so because
it is only for a period of fifteen (15) days immediately before a national election and seven (7)
days immediately before a local election.

586
 This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be
valid in National Press Club v. COMELEC[14] and Osmea v. COMELEC.[15] For the ban imposed by
R.A. No. 6646, 11(b) is not only authorized by a specific constitutional provision, [16] but it also
provided an alternative so that, as this Court pointed out in Osmea, there was actually no ban but
only a substitution of media advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the
suppression of speech and the resulting restriction of free expression is only incidental, 5.4
nonetheless fails to meet criterion [4] of the OBrien test, namely, that the restriction be not greater
than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention
of last-minute pressure on voters, the creation of bandwagon effect, junking of weak or losing
candidates, and resort to the form of election cheating called dagdag-bawas. Praiseworthy as these
aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of
expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather
than speech because of apprehension that such speech creates the danger of such evils. Thus, under
the Administrative Code of 1987,[17] the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful,
libelous, misleading or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this
power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters.
Candidates can have their own surveys conducted. No right of reply can be invoked by others. No
principle of equality is involved. It is a free market to which each candidate brings his ideas. As
for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government
can deal with this natural-enough tendency of some voters. Some voters want to be identified with
the winners. Some are susceptible to the herd mentality. Can these be legitimately prohibited by
suppressing the publication of survey results which are a form of expression? It has been held that
[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.[18]
To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3) the governmental interest sought to
be promoted can be achieved by means other than the suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its
decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in
this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a decision, order,
or resolution within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that
Resolution 3636 was rendered by the Commission. However, the Resolution does not purport to
adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power
to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELECs claim
that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing
the constitutionality of various election laws, rules, and regulations.[19]

587
 WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and
24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional.

G.R. No. L-1800 January 27, 1948

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority

Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.

Ramon Diokno for petitioner.

City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.

FERIA, J.:

This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of
the Coalesced Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel
the latter to issue a permit for the holding of a public meeting at Plaza Miranda on Sunday afternoon,
November 16, 1947, for the purpose of petitioning the government for redress to grievances on the
groun that the respondent refused to grant such permit. Due to urgency of the case, this Court, after
mature deliberation, issued a writ of mandamus, as prayed for in the petition of November 15, 1947,
without prejudice to writing later an extended and reasoned decision.

The right of freedom of speech and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
Constitutions of democratic countries. But it a casettled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power" which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities, and cities authorizing
their legislative bodies, called municipal and city councils to enact ordinances for the purpose.

The Philippine legislature has delegated the exercise of the police power to the Municipal Board of
the City of Manila, which according to section 2439 of the Administrative Code is the legislative body
of the City. Section 2444 of the same Code grants the Municipal Board, among others, the following
legislative power, to wit: "(p) to provide for the prohibition and suppression of riots, affrays,
disturbances, and disorderly assemblies, (u) to regulate the use of streets, avenues ... parks,
cemeteries and other public places" and "for the abatement of nuances in the same," and "(ee) to
enact all ordinances it may deem necessary and proper for sanitation and safety, the furtherance of
prosperity and the promotion of morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants."

Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844
and 1119. Section of the Revised Ordinances of 1927 prohibits as an offense against public peace,
and section 1262 of the same Revised Ordinance penalizes as a misdemeanor, "any act, in any
public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with
other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any congregation
engaged in any lawful assembly." And section 1119 provides the following:

588
 "SEC. 1119 Free for use of public — The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by ordinance or
regulation: Provided, that the holding of athletic games, sports, or exercise during the
celebration of national holidays in any streets or public places of the city and on the patron
saint day of any district in question, may be permitted by means of a permit issued by the
Mayor, who shall determine the streets or public places or portions thereof, where such
athletic games, sports, or exercises may be held: And provided, further, That the holding of
any parade or procession in any streets or public places is prohibited unless a permit
therefor is first secured from the Mayor who shall, on every such ocassion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade
or procession."

As there is no express and separate provision in the Revised Ordinance of the City regulating the
holding of public meeting or assembly at any street or public places, the provisions of saif section
1119 regarding the holding of any parade or procession in any street or public paces may be applied
by analogy to meeting and assembly in any street or public places.

Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is
vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful
assembly or meeting, parade, or procession in the streets and other public places of the City of
Manila; and the other is that the applicant has the right to a permit which shall be granted by the
Mayor, subject only to the latter's reasonable discretion to determine or specify the streets or public
places to be used for the purpose, with the view to prevent confusion by overlapping, to secure
convenient use of the streets and public places by others, and to provide adequate and proper
policing to minimize the risk of disorder.

After a mature deliberation, we have arrived at the conclusion that we must adopt the second
construction, that is construe the provisions of the said ordinance to mean that it does not confer
upon the Mayor the power to refuse to grant the permit, but only the discretion, in issuing the permit,
to determine or specify the streets or public places where the parade or procession may pass or the
meeting may be held.

Our conclusions find 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 be permitted unless a special
license therefor shall first be obtained from the select men of the town or from licensing committee,"
was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board
unfetted 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 firming the judgement of the
State Supreme Court, held that " a statute requiring pewrsons using the public streets for a parade
or procession to procure a special license therefor from the local authorities is not an
unconstitutional abridgement of the rights of assembly or a 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, the time, place, and manner of the parade and 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, ... ."

We can not adopt the alternative construction or constru the ordinance under consideration as
conferring upon the Mayor power to grant or refuse to grant the permit, which would be tantamount

589
to authorizing him to prohibit the use of the streets and other public places for holding of meetings,
parades or processions, because such a construction would make the ordinance invalid and void or
violative of the constitutional limitations. As the Municipal Boards is empowered only to regulate the
use of streets, parks, and the other public places, and the word "regulate," as used in section 2444
of the Revised Administrative Code, means and includes the power to control, to govern, and to
restrain, but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong
Sing vs. City of Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power that it
does not have. Besides, the powers and duties of the Mayor as the Chief Executive of the City are
executive and one of them is "to comply with and enforce and give the necessary orders for the
faithful performance and execution of laws and ordinances" (section 2434 [b] of the Revised
Administrative Code), the ligislative police power of the Municipal Board to enact ordinances
regulating reasonably the excercise of the fundamental personal rights of the citizens in the streets
and other public places, can not be delgated to the Mayor or any other officer by conferring upon him
unregulated discretion or without laying down rules to guide and control his action by which its
impartial execution can be secured or partiality and oppression prevented.

In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under
Rev. ST. Ill. c. 24, article 5 section 1, which empowers city councils to regulate the use of public
streets, the council has no power to ordain that no processions shall be allowed upon the streets
until a permit shall be obtained from the superintendent of police, leaving the issuance of such
permits to his discretion, since the powers conferred on the council cannot be delegated by them.

The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104,
held the following:

"The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also,
in substance, the same, for the ordinance in that case upon its face committed to the
unrestrained will of a single public officer the power to determine the rights of parties under it,
when there was nothing in the ordinance to guide or cintrol his action, and it was held void
because "it lays down no rules by which its impartial execution can be secured, or partiality
and oppression prevented." and that "when we remember that action or nonaction may
proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other
improper influences and motives easy of concealment and difficult to be detected and
exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of
being wrought under cover of such a power, for that becomes apparent to every one who
gives to the subject a moment's consideration. In fact, an ordinance which clothes a single
individual with such power hardly falls within the domain of law, and we are constrained to
pronounce it inoperative and void." ... In the exercise of police power, the council may, in its
discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress
them, directly or indirectly, by attempting to commit the power of doing so to the mayor or
any other officer. The discretion with which the council is vested is a legal discretion, to be
exercised within the limits of the law, and not a discretion to transcend it or to confer upon
any city officer and arbitrary authority, making him in its exercise a petty tyrant."

In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons,
or associations or organizations shall march, parade, ride or drive, in ou upon or through the public
streets of the City of Grand Rapids with musical instrument, banners, flags, ... without first having
obtained the consent of the mayor or common council of said city;" was held by the Supreme Court
of Michigan to be unreasonable and void. Said Supreme Court in the course of the decision held:

". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it
is not plainly unconstitutional, as only conferring such power over the subjects referred to as

590
 will enable the city to keep order, and suppress mischief, in accordance with the limitations
and conditions required by the rights of the people themselves, as secured by the principles
of law, which cannot be less careful of private rights under the constitution than under the
common law."

"It is quite possible that some things have a greater tendency to produce danger and
disorder in cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose, and no grant of absolute discretion to suppress
lawful action altogther can be granted at all. . . . ."

"It has been customary, from time immemorial, in all free countries, and in most civilized
countries, for people who are assembled for common purposes to parade together, by day or
reasonable hours at night, with banners and other paraphernalia, and with music of various
kinds. These processions for political, religious, and social demonstrations are resorted to for
the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce
some effect on the public mind by the spectacle of union and numbers. They are a natural
product and exponent of common aims, and valuable factors in furthering them. ... When
people assemble in riotous mobs, and move for purposes opposed to private or public
security, they become unlawful, and their members and abettors become punishable. . . ."

"It is only when political, religious, social, or other demonstrations create public disturbances,
or operate as a nuisance, or create or manifestly threaten some tangible public or private
mischief, that the law interferes."

"This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and
because it leaves the power of permitting or restraining processions, and thier courses, to an
unregulated official discretion, when the whole matter, if regualted at all, must be permanent,
legal provisions, operating generally and impartially."

In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance
which made it unlawful for any person, society or club, or association of any kind, to parade any of
the streets, with flags, banners, or transparencies, drums, horns, or other musical instruments,
without the permission of the city council first had and obtained. The appellants were members of
the Salvation Army, and were prosecuted for a violation of the ordinance, and the court in holding
the ordinance invalid said, "Ordinances to be valid must be reasonable; they must not be oppressive;
they must be fair and impartial; they must not be so framed as to allow their enforcement to rest on
official discretion ... Ever since the landing of the Pilgrims from the Mayflower the right to assemble
and worship accordingto the dictates of one's conscience, and the right to parade in a peaceable
manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights
of a free people. The spirit of our free institutions allows great latitude in public parades and
emonstrations whether religious or political ... If this ordinance is held valid, then may the city council
shut off the parades of those whose nations do not suit their views and tastes in politics or religion,
and permit like parades of those whose nations do. When men in authority are permitted in their
discretion to exercise power so arbitrary, liberty is subverted, and the spirit of of our free institutions
violated. ... Where the granting of the permit is left to the unregulated discretion of a small body of
city eldermen, the ordinance cannot be other than partial and discriminating in its practical operation.
The law abhors partiality and discrimination. ... (19 L.R.A., p. 861)

In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of
Colorado, in construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg,
which provides: "That it shall be unlawful for any person or persons or association to use the street

591
of the City of Walsenburg, Colorado for any parade, procession or assemblage without first obtaining
a permit from the Chief of Police of the City of Walsenburg so to do," held the following:

"[1] The power of municipalities, under our state law, to regulate the use of public streets is
conceded. "35 C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of
the United States to use the streets ... may be regulated in the interest of all; it is not
absolute, but relative, and must be excercised in subordination to the general, be abridged or
denied." Hague, Mayor vs. Committee for Industrial Organization, 307 U.S., 496, 516; 59 S.
Ct., 954, 964; 83 Law, ed., 1423.

[2, 3] An excellent statement of the power of a municipality to impose regulations in the use
of public streets is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S.
Ct., 762, 765; 85 Law, ed. 1049; 133 A.L.R., 1936, in which the following appears; "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 excercise of some civil right which in other
circumstances would be entitled to protection. One would not be justified in ignoring the
familiar red traffic light because he thought it his religious duty to disobey the municipal
command or sought by that means to direct public attention to an announcement of his
opinions. As regulation of the use of the streets for parades and processions is a traditional
excercise of control by local government, the question in a particular case is whether that
control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451;58
S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization,
307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437];
Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146,
150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct.,
900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352."

[4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the
uncontrolled official discretion of the chief of police of the municipal corporation to say who
shall, who shall not, be accorded the privilege of parading on its public streets. No standard
of regulation is even remotely suggested. Moreover, under the ordinance as drawn, the chief
of police may for any reason which he may entertain arbitrarily deny this privelege to any
group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:

"In the instant case the uncontrolled official suppression of the privilege of using the public
streets in a lawful manner clearly is apparent from the face of the ordinance before us, and
we therefore hold it null and void."

The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U.
S., 496, 515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of
a permit for a public assembly in or upon the public streets, highways, public parks, or public
buildings of the city and authorizing the director of public safety, for the purpose of preventing riots,
disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the
facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a

592
permit, is not a valid exercise of the police power. Said Court in the course of its opinion in support of
the conclusion said:

". . . Wherever 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.

"We think the court below was right in holding the ordinance quoted in Note 1 void upon its
face. It does not make comfort or convenience in the use of streets or parks the standard of
official action. It enables the Director of Safety to refuse a permit on his mere opinion that
such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the
record discloses, be made the instrument of arbitrary suppression of free expression of views
on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official suppression of the privilege cannot be made a
substitute for the duty to maintain order in connection with the exercise of the right."

Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides
that the Mayor shall have the power to grant and refuse municipal licenses or permits of all classes,
cannot be cited as an authority for the Mayor to deny the application of the petitioner, for the simple
reason that said general power is predicated upon the ordinances enacted by the Municipal Board
requiring licenses or permits to be issued by the Mayor, such as those found in Chapters 40 to 87 of
the Revised Ordinances of the City of Manila. It is not a specific or substantive power independent
from the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434. Moreover "one of the settled maxims in
constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated
by that department to any other body or authority," except certain powers of local government,
specially of police regulation which are conferred upon the legislative body of a municipal
corporation. Taking this into consideration, and that the police power to regulate the use of streets
and other public places has been delegated or rather conferred by the Legislature upon the
Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to be presumed that
the Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m) the same
power, specially if we take into account that its exercise may be in conflict with the exercise of the
same power by the Municipal Board.

Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred,
upon the Mayor the power to grant or refuse licenses and permits of all classes, independent from
ordinances enacted by the Municipal Board on the matter, and the provisions of section 2444 (u) of
the same Code and of section 1119 of the Revised Ordinances to the contrary notwithstanding, such
grant of unregulated and unlimited power to grant or refuse a permit for the use of streets and other
public places for processions, parades, or meetings, would be null and void, for the same reasons
stated in the decisions in the cases above quoted, specially in Willis Cox vs. New Hampshire, supra,
wherein the question involved was also the validity of a similar statute of New Hamsphire. Because
the same constitutional limitations applicable to ordinances apply to statutes, and the same
objections to a municipal ordinance which grants unrestrained discretion upon a city officer are
applicable to a law or statute that confers unlimited power to any officer either of the municipal or
state governments. Under our democratic system of government no such unlimited power may be
validly granted to any officer of the government, except perhaps in cases of national emergency. As

593
stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the council is vested is
a legal discretion to be exercised within the limits of the law, and not a discretion to transcend it or to
confer upon any city officer an arbitrary authority making in its exercise a petty tyrant."

It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code
apparently in support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but
evidently the quotation of said provision was made by the writer of the decision under a mistaken
conception of its purview and is an obiter dictum, for it was not necessary for the decision rendered.
The popular meeting or assemblage intended to be held therein by the Communist Party of the
Philippines was clearly an unlawful one, and therefore the Mayor of the City of Manila had no power
to grant the permit applied for. On the contrary, had the meeting been held, it was his duty to have
the promoters thereof prosecuted for violation of section 844, which is punishable as misdemeanor
by section 1262 of the Revised Ordinances of the City of Manila. For, according to the decision, "the
doctrine and principles advocated and urged in the Constitution and by-laws of the said Communist
Party of the Philippines, and the speeches uttered, delivered, and made by its members in the public
meetings or gatherings, as above stated, are highly seditious, in that they suggest and incite
rebelious conspiracies and disturb and obstruct the lawful authorities in their duty."

The reason alleged by the respondent in his defense for refusing the permit is, "that there is a
reasonable ground to believe, basing upon previous utterances and upon the fact that passions,
specially on the part of the losing groups, remains bitter and high, that similar speeches will be
delivered tending to undermine the faith and confidence of the people in their government, and in the
duly constituted authorities, which might threaten breaches of the peace and a disruption of public
order." As the request of the petition was for a permit "to hold a peaceful public meeting," and there
is no denial of that fact or any doubt that it was to be a lawful assemblage, the reason given for the
refusal of the permit can not be given any consideration. As stated in the portion of the decision in
Hague vs. Committee on Industrial Organization, supra, "It does not make comfort and convenience
in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse
the permit on his mere opinion that such refusal will prevent riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary suppression of
free expression of views on national affairs, for the prohibition of all speaking will undoubtedly
'prevent' such eventualities." To this we may add the following, which we make our own, said by Mr.
Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the bondage
of irrational fears. To justify suppression of free speech there must be reasonable ground to
fear that serious evil will result if free speech is practiced. There must be reasonable ground
to believe that the danger apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one . . .

"Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. . . .

"Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential effective democracy, unless the evil apprehended is relatively serious. Prohibition
of free speech and assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a society. . . . The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen, the deterrents
ordinarily to be applied to prevent crimes are education and punishment for violations of the

594
 law, not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S.
Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)

In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable
objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is
ordered to issue the corresponding permit, as requested. So ordered.

G.R. No. L-62270 May 21, 1984

CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, and
JUNE LEE, petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the National
Capital Region of the Ministry of Education, Culture and Sports, THE GREGORIO ARANETA
UNIVERSITY FOUNDATION; CESAR MIJARES, in his capacity as the President of the
Gregorio Araneta University Foundation, GONZALO DEL ROSARIO, in his capacity as the
Director for Academic Affairs of the Gregorio Araneta University Foundation; TOMAS B.
MESINA, in his capacity as the Dean of Student Affairs of the Gregorio Araneta University
Foundation; ATTY. LEONARDO PADILLA, in his capacity as Chief Legal Counsel & Security
Supervisor of the Gregorio Araneta University Foundation; ATTY. FABLITA AMMAY,
ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as members of the Ad Hoc
Committee of the Gregorio Araneta University Foundation, respondents.

Honesto N. Salcedo for petitioners.

The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.

FERNANDO, CJ.:

The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free
speech is the grievance alleged by petitioners, students of the Gregorio Araneta University
Foundation, in this certiorari, prohibition and mandamus proceeding. The principal respondents are
Anastacio D. Ramento, Director of the National Capital Region of the Ministry of Education, Culture
and Sports and the Gregorio Araneta University Foundation. 1 The nullification of the decision of respondent
Ramento affirming the action taken by respondent Gregorio Araneta University Foundation finding petitioners guilty of illegal assembly and
suspending them is sought in this petition.

The facts are not open to dispute. Petitioners were officers of the Supreme Student Council of
respondent University. They sought and were granted by tile school authorities a permit to hold a
meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant to such permit, along with other
students, they held a general assembly at the Veterinary Medicine and Animal Science basketball
court (VMAS), the place indicated in such permit, not in the basketball court as therein stated but at
the second floor lobby. At such gathering they manifested in vehement and vigorous language their
opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture.
At 10:30 A.M., the same day, they marched toward the Life Science Building and continued their
rally. It was outside the area covered by their permit. They continued their demonstration, giving
utterance to language severely critical of the University authorities and using megaphones in the
process. There was, as a result, disturbance of the classes being held. Also, the non-academic
employees, within hearing distance, stopped their work because of the noise created. They were
asked to explain on the same day why they should not be held liable for holding an illegal assembly.

595
Then on September 9, 1982, they were formed through a memorandum that they were under
preventive suspension for their failure to explain the holding of an illegal assembly in front of the Life
Science Building. The validity thereof was challenged by petitioners both before the Court of First
Instance of Rizal in a petition for mandamus with damages against private respondents 2 and before
the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as
Director of the National Capital Region, found petitioners guilty of the charge of having violated par.
146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which
was characterized by the violation of the permit granted resulting in the disturbance of classes and
oral defamation. The penalty was suspension for one academic year. Hence this petition.

On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-
parte motion for the immediate issuance of a temporary mandatory order filed by counsel for
petitioners, dated November 12, 1982, the Court Resolved to ISSUE A TEMPORARY
RESTRAINING ORDER enjoining all respondents or any person or persons acting in their place or
stead from enforcing the order of the Ministry of' Education and Culture dated October 20, 1982
finding the petitioners guilty of the charges against them and suspending them for one (1) academic
year with a stern warning that a commission of the same or another offense will be dealt with utmost
severity, effective as of this date and continuing until otherwise ordered by this Court, thus allowing
them to enroll, if so minded. 3

Both public and private respondents submitted their comments. Private respondents prayed for the
dismissal of the petition "for lack of factual and legal basis and likewise [prayed] for the lifting of the
temporary restraining order dated November 16, 1982." 4 Public respondent Ramento, on the other
hand, through the Office of the Solicitor General, prayed for the dismissal of the petition based on
the following conclusion: "Consequently, it is respectfully submitted that respondent Director of the
MECS did not commit any error, much less abused his discretion, when he affirmed the decision of
respondent University finding petitioners guilty of violations of the provisions of the Manual of
Regulations for Private Schools and the Revised Student's Code of Discipline .and ordering their
suspension for one (1) academic school year. However, since said suspension has not been
enforced except only briefly, thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to
finish their courses, and allowing petitioners Lee and Jalos to continue their schooling, if they so
desire, this proceeding is now moot and academic. 5

With the submission of such comments considered as the answers of public and private
respondents, the case was ready for decision.

This petition may be considered moot and academic if viewed solely from the fact that by virtue of
the temporary restraining order issued by this Court petitioners were allowed to enroll in the ensuing
semester, with three of them doing so and with the other two equally entitled to do so. Moreover,
there is the added circumstance of more than a year having passed since October 20, 1982 when
respondent Ramento issued the challenged decision suspending them for one year. Nonetheless,
with its validity having been put in issue, for being violative of the constitutional rights of freedom of
peaceable assembly and free speech, there is need to pass squarely on the question raised.

This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free
speech calls for the setting aside of the decision of respondent Ramento, the penalty imposed being
unduly severe. It is true that petitioners held the rally at a place other than that specified in the permit
and continued it longer than the time allowed. Undeniably too, they did disturb the classes and
caused the work of the non-academic personnel to be left undone. Such undesirable consequence
could have been avoided by their holding the assembly in the basketball court as indicated in the
permit. Nonetheless, suspending them for one year is out of proportion to their misdeed. The petition

596
must be granted and the decision of respondent Ramento nullified, a much lesser penalty being
appropriate.

1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to freedom of
peaceable assembly carries with it the implication that the right to free speech has likewise been
disregarded. Both are embraced in the concept of freedom of expression which is Identified with the
liberty to discuss publicly and truthfully, any matter of public interest without censorship or
punishment and which "is not to be limited, much less denied, except on a showing ... of a clear and
present danger of a substantive evil that the state has a right to prevent." 7

2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta public
park to the gates of the united States Embassy, hardly two blocks away, where in an open space of
public property, a short program would be held. Necessarily then, the question of the use of a public
park and of the streets leading to the United States Embassy was before this Court. We held that
streets and parks have immemorially been held in trust for the use of the public and have been used
for purposes of assembly to communicate thoughts between citizens and to discuss public issues. 8

3. The situation here is different. The assembly was to be held not in a public place but in private
premises, property of respondent University. There is in the Reyes opinion as part of the summary
this relevant excerpt: "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." 9 Petitioners did seek such consent. It was granted. According to the petition: "On August
27, 1982, by virtue of a permit granted to them by the school administration, the Supreme Student
Council where your petitioners are among the officers, held a General Assembly at the VMAS
basketball court of the respondent university." 10 There was an express admission in the Comment of private respondent
University as to a permit having been granted for petitioners to hold a student assembly. 11 The specific question to be resolved then is
whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement of the right to
peaceable assembly and its cognate right of free speech.

4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so.
They enjoy like the rest of the citizens the freedom to express their views and communicate their
thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to
borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 12 "shed
their constitutional rights to freedom of speech or expression at the schoolhouse gate." 13While, therefore, the authority of educational
institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. On a more
specific level there is persuasive force to this formulation in the Fortas opinion: "The principal use to which the schools are dedicated is to
accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal
intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of
the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the
playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in
Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the
school' and without colliding with the rights of others. ... But conduct by the student, in class or out of it, which for any reason — whether it
stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others
is, of course, not immunized by the constitutional guarantee of freedom of speech." 14

5. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a disregard of their constitutional rights to
peaceable assembly and free speech. It must be in their favor, but subject to qualification in view of their continuing their demonstration in a
place other than that specified in the permit for a longer period and their making use of megaphones therein, resulting in the disruption of
classes and the stoppage of work by the non-academic personnel in the vicinity of such assembly.

6. Objection is made by private respondents to the tenor of the speeches by the student leaders.
That there would be a vigorous presentation of views opposed to the proposed merger of the
Institute of Animal Science with the Institute of Agriculture was to be expected. There was no
concealment of the fact that they were against such a move as it confronted them with a serious
problem (iisang malaking suliranin.") 15 They believed that such a merger would result in the increase in tuition fees, an
additional headache for their parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the course of such demonstration, with
an enthusiastic audience goading them on, utterances, extremely critical, at times even vitriolic, were let loose, that is quite understandable.

597
Student leaders are hardly the timid, diffident types. They are likely to be assertive and dogmatic. They would be ineffective if during a rally
they speak in the guarded and judicious language of the academe. At any rate, even a sympathetic audience is not disposed to accord full
credence to their fiery exhortations. They take into account the excitement of the occasion, the propensity of speakers to exaggerate, the
exuberance of youth, They may give the speakers the benefit of their applause, but with the activity taking place in the school premises and
during the daytime, no clear and present danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action
for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."

7. Nor is this a novel approach to the issue raised by petitioners that they were denied the right to
peaceable assembly. In a 1907 decision, United States v. Apurado, 17 the facts disclosed that shortly before the
municipal council of San Carlos, Occidental Negros, started its session, some five hundred residents of the municipality assembled near the
municipal building, and, upon the opening of the session, a substantial number of such persons barged into the council chamber, demanding
that the municipal treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the same time the proposed
substitutes. The municipal council gave its conformity. Such individuals were wholly unarmed except that a few carried canes; the crowd was
fairly orderly and well-behaved except in so far as their pressing into the council chamber during a session of that body could be called
disorder and misbehavior. It turned out that the movement had its origin in religious differences. The defendant Filomeno Apurado and many
other participants were indicted and convicted of sedition in that they allegedly prevented the municipal government from freely exercising its
duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the opinion, correctly pointed out that "if the prosecution be
permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances
would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner
would expose all those who took part therein to the severest form of punishment, if the purposes which they sought to attain did not happen
to be pleasing to the prosecuting authorities." 18 The principle to be followed is enunciated thus: "If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the
line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." 19 A careful
reading of this decision is in order before private respondents attach, as they did in their comments, a subversive character to the rally held
by the students under the leadership of petitioners.

8. It does not follow, however, that petitioners can be totally absolved for the events that transpired.
Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than
that specified, in the second floor lobby, rather than the basketball court, of the VMAS building of the
University. Moreover, it was continued longer than the period allowed. According to the decision of
respondent Ramento, the "concerted activity [referring to such assembly] went on until 5:30 p.
m. 20 Private respondents could thus, take disciplinary action. On those facts, however, an
admonition, even a censure-certainly not a suspension-could be the appropriate penalty. Private
respondents could and did take umbrage at the fact that in view of such infraction considering the
places where and the time when the demonstration took place-there was a disruption of the classes
and stoppage of work of the non-academic personnel. They would not be unjustified then if they did
take a much more serious view of the matter. Even then a one-year period of suspension is much
too severe. While the discretion of both respondent University and respondent Ramento is
recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept
of proportionality between the offense connoted and the sanction imposed is not followed, an
element of arbitrariness intrudes. That would give rise to a due process question. To avoid this
constitutional objection, it is the holding of this Court that a one-week suspension would be
punishment enough.

9. One last matter. The objection was raised that petitioners failed to exhaust administrative
remedies. That is true, but hardly decisive. Here, a purely legal question is presented. Such being
the case, especially so where a decision on a question of law is imperatively called for, and time
being of the essence, this Court has invariably viewed the issue as ripe for adjudication. What
cannot be too sufficiently stressed is that the constitutional rights to peaceable assembly and free
speech are invoked by petitioners. Moreover, there was, and very likely there will continue to be in
the future, militancy and assertiveness of students on issues that they consider of great importance,
whether concerning their welfare or the general public. That they have a right to do as citizens
entitled to all the protection in the Bill of Rights.

10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for this
Court to lay down the principles for the guidance of school authorities and students alike. The rights
to peaceable assembly and free speech are guaranteed students of educational institutions.
Necessarily, their exercise to discuss matters affecting their welfare or involving public interest is not

598
to be subjected to previous restraint or subsequent punishment unless there be a showing of a clear
and present danger to a substantive evil that the state, has a right to present. As a corollary, the
utmost leeway and scope is accorded the content of the placards displayed or utterances made. The
peaceable character of an assembly could be lost, however, by an advocacy of disorder under the
name of dissent, whatever grievances that may be aired being susceptible to correction through the
ways of the law. If the assembly is to be held in school premises, permit must be sought from its
school authorities, who are devoid of the power to deny such request arbitrarily or unreasonably. In
granting such permit, there may be conditions as to the time and place of the assembly to avoid
disruption of classes or stoppage of work of the non-academic personnel. Even if, however, there be
violations of its terms, the penalty incurred should not be disproportionate to the offense.

WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent Ramento
imposing a one-year suspension is nullified and set aside. The temporary restraining order issued by
this Court in the resolution of November 18, 1982 is made permanent. As of that date, petitioners
had been suspended for more than a week. In that sense, the one-week penalty had been served.
No costs.

LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO,

CORAZON GOMEZ, ELENA GUEVARRA, ROSALINA JINGCO,
LOIDA IGNACIO, and EMERITA PIZARRO, petitioners vs., COURT
OF APPEALS, CIVIL SERVICE COMMISSION and THE
SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE
AND SPORTS, respondents.

[G.R. No. 129221. March 25, 1999]

ROLANDO ALURA, CLARA ALVAREZ, PORFIRIO AUSTRIA, VICENTE

CARRANZA, ELMER DALIDA, ROSALINDA DALIDA, NELSON
DULDULAO, LEA POCONG, ENRICO REYMUNDO, MARGIE
SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO
ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA BANUA,
CAROLINA BULACLAC, DANILO CABALLES, ECHELITA
CALMA, JESUSA CARAIG, CECILLA CASTILLO, ANACLETA
CORRALES, GLORIA CUEVAS, CONCORDIA DE GUZMAN,
ROWENA DEL ROSARIO, MATILDE DINGLE, ROSARIO
DULDULAO, CONRADA ENDRINA, LUZVIMINDA ESPINO,
VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO
FLORES, ROSALIA GARCELINA, CORAZON GONZALES,
VIOLETA GUANIZO, SURENA GUNDRAN, HILARIA HALAGO,
NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY,
TERESITA LAURENTE, CARMELITA LEGION, LEONARDO

599
 LIMBO, EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA
MAGSULIT, AMELITA MANGAHAS, GUIA MORRIS, HIPOLITA
NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM,
MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICERIA
PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA
REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA
SALVADOR, CATHERINE SAN AGUSTIN, LIBERTY SISON,
ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS,
BENJAMIN VALBUENA, DONATO VALDEMORO, ROSEMARIE
VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA
VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHINE
PARMISANO, FELIPE ALACAR, JOSE FETALVERO, JR., MYRNA
BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA
CLEMENCIA, petitioners, vs. COURT OF APPEALS, CIVIL SERVICE
COMMISSION, and SECRETARY OF EDUCATION CULTURE AND
SPORTS, respondents.

DECISION
BELLOSILLO, J.:

These consolidated petitions[1] are among several petitions filed with this Court arising from
the much-publicized public school teachers' mass actions of September/October 1990.
Petitioners are public school teachers from various schools in Metro Manila who were
simultaneously charged, preventively suspended, and eventually dismissed in October 1990 by
then Secretary Isidro D. Cariio of the Department of Education, Culture and Sports (DECS), in
decisions issued by him which uniformly read -

This is a motu-propio administrative complaint separately filed by the Secretary of

Education, Culture and Sports against the following public school teachers x x x x
based on the report submitted by their respective school principals wherein it was
alleged that the above-named teachers participated in the mass action/illegal strike on
Sept. 19-21, 1990 and subsequently defied the return-to-work order dated September
17, 1990 issued by this Office, which acts constitute grave misconduct, gross neglect
of duty, gross violation of Civil Service Law, Rules and Regulations and reasonable
office regulations, refusal to perform official duty, gross insubordination, conduct
prejudicial to the best interest of the service and absence without official leave
(AWOL), in violation of Presidential Decree 807, otherwise known as the Civil
Service Decree of the Philippines.

Required to explain within a period of not less than 72 hours but not more than 5 days
from receipt of the complaint, respondents failed to submit the required answer within

600
the given time up to the present, and despite the denial of their request for extension
of 30 days within which to submit their answers dated September 25, 1990 filed by
their counsel, Atty. Gregorio Fabros, in a letter of this Office to him dated September
28, 1990, respondents failed to submit the same, which failure, is considered a waiver
on their part of their right to answer the charges and to controvert the same.

Wherefore, after a careful evaluation of the records, this Office finds the respondents
guilty as charged.

In accordance with Memorandum Circular 30 s. 1989 of the Civil Service

Commission on Guidelines in the Application of Penalty in Administrative Cases, the
herein respondents are dismissed from Office effective immediately.

The decisions dismissing petitioners were immediately implemented.

Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil
Service Commission (CSC). In 1993 the CSC found petitioners guilty of conduct prejudicial to the
best interest of the service" for having participated in the mass actions and imposed upon them the
reduced penalty of six (6) months' suspension. However, in view of the length of time that
petitioners had been out of the service by reason of the immediate implementation of the dismissal
orders of Secretary Cario, the CSC likewise ordered petitioners' automatic reinstatement in the
service without back wages.
Petitioners were unhappy with the CSC decision. They initially filed petitions
for certiorari with this Court, docketed as G.R. Nos. 111998,[2] 114435-5506,[3] and 116312-
19,[4] which were all referred to the Court of Appeals pursuant to Revised Administrative Circular
No. 1-95,[5] and there re-docketed as CA-G.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-G.R.
SP Nos. 37784, 37808-37014, respectively.
On 29 November 1995 the Special Third Division of the Court of Appeals[6] rendered a joint
decision in CA-G.R. SP Nos. 37619-20 dismissing the petitions for lack of merit.[7] The appellate
court ruled that the questioned resolutions of the Civil Service Commission finding petitioners
guilty of conduct prejudicial to the best interest of the service were based on reasonable and
justifiable grounds; that petitioners' perceived grievances were no excuse for them not to conduct
classes and defy the return-to-work order issued by their superiors; that the immediate execution
of the dismissal orders of Secretary Cario was sanctioned by Sec. 47, par. (2), of the Administrative
Code of 1987 (E.O. No. 292) as well as Sec. 37, par. (b), Art. IX of PD No. 807,[8] and Sec. 32,
Rule XIV of the Omnibus Rules Implementing Book V of E.0. No. 292. Their motion for
reconsideration having been denied on 15 May 1997,[9]petitioners then appealed by certiorari to
this Court on 26 June 1997, docketed as G.R. No. 129221.
Meanwhile, on 24 April 1998 the Tenth Division of the Court of Appeals[10] rendered a joint
decision in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the petitions for lack
of merit.[11] The appellate court rejected petitioners' contention that they should not have been
penalized for participating in the September/October 1990 mass actions because they were merely
exercising their constitutional right to free assembly. In so ruling the Court of Appeals
cited Manila Public School Teachers Association v. Laguio, Jr.[12] wherein this Court ruled that the

601
public school teachers' mass actions of September/October 1990 were "to all intents and purposes
a strike x x x constitut[ing] a concealed and unauthorized stoppage of, or absence from, work which
it was the teachers' duty to perform, undertaken for essentially economic reasons." Petitioners'
contention that Secretary Cario's decision to dismiss them was not supported by evidence was
likewise rejected in view of petitioners' admissions and/or failure to refute the factual finding that
petitioners actually joined the mass actions based on the report of absences submitted by their
respective school principals. Their motion for reconsideration having been denied in the resolution
of 20 August 1996,[13] petitioners then filed a petition for review on certiorari with this Court on 1
October 1996, docketed as G.R. No, 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R.
Nos. 126183 and 129221 involving as they did common questions of fact and law.
Petitioners contend that the Court of Appeals grievously erred in affirming the CSC
resolutions finding them guilty of conduct prejudicial to the best interest of the service when their
only "offense" was to exercise their constitutional right to peaceably assemble and petition the
government for redress of their grievances. Moreover petitioners insist that the mass actions of
September/October 1990 were not "strikes" as there was no actual disruption of classes. Petitioners
therefore ask for exoneration or, in the alternative, award of back wages for the period of three (3)
years when they were not allowed to work while awaiting resolution of their appeals by the MSPB
and CSC, deducting the period of six (6) months' suspension eventually meted them.
The petitions must be denied in view of previous rulings of this Court already settling all the
issues raised by petitioners. It is a very desirable and necessary judicial practice that when a court
has laid down a principle of law as applicable to a certain state of facts, it will adhere to that
principle and apply it to all future cases where the facts are substantially the same.[14] Stare decisis
et non quieta movere. Stand by the decisions and disturb not what is settled.[15]
As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila
Public School Teachers Association v. Laguio Jr.[16] and Alliance of Concerned Teachers v.
Hon. Isidro Cario[17] that the mass actions of September/October 1990 staged by Metro Manila
public school teachers "amounted to a strike in every sense of the term, constituting as they did, a
concerted and unauthorized stoppage of or absence from work which it was said teachers' sworn
duty to perform, carried out for essentially economic reasons -- to protest and pressure the
Government to correct what, among other grievances, the strikers perceived to be the unjust or
prejudicial implementation of the salary standardization law insofar as they were concerned, the
non-payment or delay in payment of various fringe benefits and allowances to which they were
entitled, and the imposition of additional teaching loads and longer teaching hours." In Rolando
Gan v. Civil Service Commission,[18] we denied the claim that the teachers were thereby denied
their rights to peaceably assemble and petition the government for redress of grievances reasoning
that this constitutional liberty to be upheld, like any other liberty, must be exercised within
reasonable limits so as not to prejudice the public welfare. But the public school teachers in the
case of the 1990 mass actions did not exercise their constitutional rights within reasonable
limits. On the contrary, they committed acts prejudicial to the best interest of the service by staging
the mass protests on regular school days, abandoning their classes and refusing to go back even
after they had been ordered to do so. Had the teachers availed of their free time - recess, after
classes, weekends or holidays - to dramatize their grievances and to dialogue with the proper

602
authorities within the bounds of law, no one - not the DECS, the CSC or even the Supreme Court
- could have held them liable for their participation in the mass actions.[19]
With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co.,
Inc.,[20] invoked by petitioners, we have likewise already ruled in the Rolando Gan case[21] that the
PBM ruling - that the rights of free expression and assembly could not be lightly disregarded as
they occupy a preferred position in the hierarchy of civil liberties - was not applicable to defend
the validity of the 1990 mass actions because what were pitted therein against the rights of free
expression and of assembly were inferior property rights while the higher consideration involved
in the case of the striking teachers was the education of the youth which must, at the very least, be
equated with the freedom of assembly and to petition the government for redress of grievances.[22]
We affirmed the foregoing rulings in Bagana v. Court of Appeals[23] by denying a similar
petition filed by another group of teachers who participated in the 1990 mass actions but who
claimed to have been merely exercising their constitutional right to free assembly. We held
in Bagana that the Court of Appeals committed no reversible error in affirming the CSC
resolutions finding the teachers guilty of conduct prejudicial to the best interest of the service and
imposing penalties of six (6) months' suspension without pay. In Bangalisan v. Court of
Appeals[24] we added that the persistent refusal of the striking teachers to call the mass actions by
the conventional term "strike" did not erase the true nature of the mass actions as unauthorized
stoppages of work the purpose of which was to obtain a favorable response to the teachers'
economic grievances. We again stressed that the teachers were penalized not because
they exercised their right to peaceably assemble but because of the manner by which such right
was exercised, i.e., going on unauthorized and unilateral absences thus disrupting classes in
various schools in Metro Manila which produced adverse effects upon the students for whose
education the teachers were responsible. But herein petitioners contend that classes were not
actually disrupted because substitute teachers were immediately appointed by Secretary
Cario. Besides being a purely factual assertion which this Court cannot take cognizance of in a
petition for review, the fact that the prompt remedial action taken by Secretary Cario might have
partially deflected the adverse effects of the mass protests did not erase the administrative liability
of petitioners for the intended consequences thereof which were the very reason why such prompt
remedial action became necessary.
Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining
the CSC resolutions finding petitioners guilty of conduct prejudicial to the best interest of the
service.
As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they
be awarded back wages for the period when they were not allowed to work by reason of the
supposed unjustified immediate implementation of the dismissal orders of Secretary Cario while
awaiting resolution of their appeals by the MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered reinstated to the service
after the dismissal orders of Secretary Cario were commuted by the CSC to six (6) months'
suspension is already settled.
In Bangalisan v. Court of Appeals[25] we resolved the issue in the negative on the ground that
the teachers were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary
for the grant of back wages in administrative disciplinary cases. Like herein petitioners, those

603
in Bangalisan were also teachers who participated in the 1990 mass actions for which they were
dismissed by Secretary Cario but ordered merely suspended for six (6) months by the Civil Service
Commission. On a plea that the immediate implementation of the dismissal orders of Secretary
Cario was unjustified, thus warranting an award of back wages the Court said -

As to the immediate execution of the decision of the Secretary against petitioners, the
same is authorized by Section 47, paragraph (2), of Executive Order No. 292, thus:
"The Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decision shall be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days' salary. In case the decision
rendered by a bureau or office is appealable to the Commission, the same shall be
executory except when the penalty is removal, in which case the same shall be
executory only after confirmation by the Secretary concerned.

And since it was already the final dismissal orders of Secretary Cario which were being carried
out, immediate implementation even pending appeal was clearly sanctioned by the aforequoted
provision of the Administrative Code of 1987.[26] Hence, being legal, the immediate execution of
the dismissal orders could not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v.
City of Baguio[27] and Bautista v. Peralta[28] being cases which involved the unjustified immediate
execution of the dismissal orders of the then Civil Service Commissioner pending appeal to the
Civil Service Board of Appeals are therefore not applicable to justify petitioners' prayer. Neither
could petitioners be considered to have been exonerated from the charges levelled against them by
Secretary Cario from the mere fact that they were found guilty only of conduct prejudicial to the
best interest of the service by the CSC. It must be remembered that Secretary Cario charged
petitioners with grave misconduct, gross neglect of duty, gross violation of civil service law, rules
and regulations, etc., for having participated in the 1990 illegal mass actions. On appeal the CSC
while affirming the factual finding that petitioners indeed participated in the mass actions found
them liable only for conduct prejudicial to the best interest of the service. Clearly the CSC decision
did not proceed from a finding that petitioners did not commit the acts complained of. Having been
found to have actually participated in the illegal mass actions although found answerable for a
lesser offense, petitioners could not be considered as fully innocent of the charges against
them.[29] Being found liable for a lesser offense is not equivalent to exoneration.[30]
Thus in Bangalisan we denied the claim for back wages of those teachers who were found to
have actually participated in the 1990 mass actions but granted the claim of one Rodolfo Mariano
who was absent only because he attended the wake and interment of his grandmother. In Jacinto
v. Court of Appeals[31] we again denied the claim for back wages of teachers found to have given
cause for their suspension, i.e., their unjustified abandonment of classes to the prejudice of their
students but granted the claim of Merlinda Jacinto who was absent because of illness.
Petitioners do not deny, nay they even admit, having participated in the 1990 mass
actions. Thus having given cause for their supension, their prayer for back wages must be denied
conformably with settled rulings of this Court.

604
 WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals
dated 29 November 1995 and 24 April 1996 are AFFIRMED. No costs.

G.R. No. L-31195 June 5, 1973

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO,

FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.

L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.

Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:

The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO)
is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills
Co., Inc., and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon,
Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and
members of the petitioner Union.

Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacañang
on March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the
workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts
(from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the
respondent Company of their proposed demonstration.

The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the
respondent Court reproduced the following stipulation of facts of the parties — parties —

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM-2:00 PM) workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in
the morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
L. Ang (2) Atty. S. de Leon, Jr., (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as spokesman of the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled because it has already

605
 been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration for
that matter should not unduly prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In
this afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA,
particularly Article XXIV: NO LOCKOUT — NO STRIKE'. All those who will not follow
this warning of the Company shall be dismiss; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their
plans inasmuch as the Malacañang demonstration will be held the following morning;
and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)

Because the petitioners and their members numbering about 400 proceeded with the demonstration
despite the pleas of the respondent Company that the first shift workers should not be required to
participate in the demonstration and that the workers in the second and third shifts should be utilized
for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of
the mass demonstration on March 4, 1969, with the respondent Court, a charge against petitioners
and other employees who composed the first shift, charging them with a "violation of Section 4(a)-6
in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA
providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was
accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24,
rec.). Thereafter, a corresponding complaint was filed, dated April 18, 1969, by Acting Chief
Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA
because they gave the respondent Company prior notice of the mass demonstration on March 4,
1969; that the said mass demonstration was a valid exercise of their constitutional freedom of
speech against the alleged abuses of some Pasig policemen; and that their mass demonstration

606
was not a declaration of strike because it was not directed against the respondent firm (Annex "D",
pp. 31-34, rec.)

After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M.
Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining
in bad faith and herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly
responsible for perpetrating the said unfair labor practice and were, as a consequence, considered
to have lost their status as employees of the respondent Company (Annex "F", pp. 42-56, rec.)

Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.);
and that they filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59,
rec.), a motion for reconsideration of said order dated September 15, 1969, on the ground that it is
contrary to law and the evidence, as well as asked for ten (10) days within which to file their
arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp.
57-60, rec. )

In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company
averred that herein petitioners received on September 22, 1969, the order dated September 17
(should be September 15), 1969; that under Section 15 of the amended Rules of the Court of
Industrial Relations, herein petitioners had five (5) days from September 22, 1969 or until September
27, 1969, within which to file their motion for reconsideration; and that because their motion for
reconsideration was two (2) days late, it should be accordingly dismissed, invoking Bien vs.
Castillo,1 which held among others, that a motion for extension of the five-day period for the filing of a
motion for reconsideration should be filed before the said five-day period elapses (Annex "M", pp.
61-64, rec.).

Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11,
1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.).

In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for
reconsideration of herein petitioners for being pro forma as it was filed beyond the reglementary
period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on
October 28, 196 (pp. 12 & 76, rec.).

At the bottom of the notice of the order dated October 9, 1969, which was released on October 24,
1969 and addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of
Sections 15, 16 and 17, as amended, of the Rules of the Court of Industrial Relations, that a motion
for reconsideration shall be filed within five (5) days from receipt of its decision or order and that an
appeal from the decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within
ten (10) days from receipt thereof (p. 76, rec.).

On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the
order dated October 9, 1969, on the ground that their failure to file their motion for reconsideration
on time was due to excusable negligence and honest mistake committed by the president of the
petitioner Union and of the office clerk of their counsel, attaching thereto the affidavits of the said
president and clerk (Annexes "K", "K-1" and "K-2", rec.).

Without waiting for any resolution on their petition for relief from the order dated October 9, 1969,
herein petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L",
pp. 88-89, rec.).

607
I

There is need of briefly restating basic concepts and principles which underlie the issues posed by
the case at bar.

(1) In a democracy, the preservation and enhancement of the dignity and worth of the human
personality is the central core as well as the cardinal article of faith of our civilization. The inviolable
character of man as an individual must be "protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person."2

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the
assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments,
and the scorn and derision of those who have no patience with general principles."3

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts. One's
rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to a vote; they depend on the outcome of no
elections."4 Laski proclaimed that "the happiness of the individual, not the well-being of the State,
was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits
to the authority it was entitled to exercise."5

(3) The freedoms of expression and of assembly as well as the right to petition are included among
the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to
protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated,
not only to protect the minority who want to talk, but also to benefit the majority who refuse to
listen.6 And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the
liberties of one are not safe unless the liberties of all are protected.7

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights over property
rights is recognized.8 Because these freedoms are "delicate and vulnerable, as well as supremely
precious in our society" and the "threat of sanctions may deter their exercise almost as potently as
the actual application of sanctions," they "need breathing space to survive," permitting government
regulation only "with narrow specificity."9

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, of the influential and powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political

608
institutions; 10 and such priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions." 11

The superiority of these freedoms over property rights is underscored by the fact that a mere
reasonable or rational relation between the means employed by the law and its object or purpose —
that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law
which restricts or impairs property rights. 12 On the other hand, a constitutional or valid infringement
of human rights requires a more stringent criterion, namely existence of a grave and immediate
danger of a substantive evil which the State has the right to prevent. So it has been stressed in the
main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of the
opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice Barredo in Gonzales vs.
Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times Co. vs.
Sullivan, 14 believes that the freedoms of speech and of the press as well as of peaceful assembly
and of petition for redress of grievances are absolute when directed against public officials or "when
exercised in relation to our right to choose the men and women by whom we shall be
governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice
Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand, viz. —
whether the gravity of the evil, discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger. 17

II

The respondent Court of Industrial Relations, after opining that the mass demonstration was not a
declaration of strike, concluded that by their "concerted act and the occurrence temporary stoppage
of work," herein petitioners are guilty bargaining in bad faith and hence violated the collective
bargaining agreement with private respondent Philippine Blooming Mills Co., inc.. Set against and
tested by foregoing principles governing a democratic society, such conclusion cannot be sustained.
The demonstration held petitioners on March 4, 1969 before Malacañang was against alleged
abuses of some Pasig policemen, not against their employer, herein private respondent firm, said
demonstrate was purely and completely an exercise of their freedom expression in general and of
their right of assembly and petition for redress of grievances in particular before appropriate
governmental agency, the Chief Executive, again the police officers of the municipality of Pasig.
They exercise their civil and political rights for their mutual aid protection from what they believe
were police excesses. As matter of fact, it was the duty of herein private respondent firm to protect
herein petitioner Union and its members fro the harassment of local police officers. It was to the
interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its
employees, so that they can report to work free from harassment, vexation or peril and as
consequence perform more efficiently their respective tasks enhance its productivity as well as
profits. Herein respondent employer did not even offer to intercede for its employees with the local
police. Was it securing peace for itself at the expenses of its workers? Was it also intimidated by the
local police or did it encourage the local police to terrorize or vex its workers? Its failure to defend its
own employees all the more weakened the position of its laborers the alleged oppressive police who
might have been all the more emboldened thereby subject its lowly employees to further indignities.

In seeking sanctuary behind their freedom of expression well as their right of assembly and of
petition against alleged persecution of local officialdom, the employees and laborers of herein private
respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the
Constitution — the untrammelled enjoyment of their basic human rights. The pretension of their
employer that it would suffer loss or damage by reason of the absence of its employees from 6
o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their
property rights. Such apprehended loss or damage would not spell the difference between the life
and death of the firm or its owners or its management. The employees' pathetic situation was a stark
reality — abused, harassment and persecuted as they believed they were by the peace officers of

609
the municipality. As above intimated, the condition in which the employees found themselves vis-a-
vis the local police of Pasig, was a matter that vitally affected their right to individual existence as
well as that of their families. Material loss can be repaired or adequately compensated. The
debasement of the human being broken in morale and brutalized in spirit-can never be fully
evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying
day, even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues.

As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly
and of petition for redress of grievances — over property rights has been sustained. 18 Emphatic
reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and
worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes
Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can
produce economic goods that can generate happiness for all. To regard the demonstration against
police officers, not against the employer, as evidence of bad faith in collective bargaining and hence
a violation of the collective bargaining agreement and a cause for the dismissal from employment of
the demonstrating employees, stretches unduly the compass of the collective bargaining agreement,
is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the
constitutional guarantees of free expression, of peaceful assembly and of petition. 19

The collective bargaining agreement which fixes the working shifts of the employees, according to
the respondent Court Industrial Relations, in effect imposes on the workers the "duty ... to observe
regular working hours." The strain construction of the Court of Industrial Relations that a stipulated
working shifts deny the workers the right to stage mass demonstration against police abuses during
working hours, constitutes a virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on such a slender ground.

The mass demonstration staged by the employees on March 4, 1969 could not have been legally
enjoined by any court, such an injunction would be trenching upon the freedom expression of the
workers, even if it legally appears to be illegal picketing or strike. 20 The respondent Court of
Industrial Relations in the case at bar concedes that the mass demonstration was not a declaration
of a strike "as the same not rooted in any industrial dispute although there is concerted act and the
occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.).

The respondent firm claims that there was no need for all its employees to participate in the
demonstration and that they suggested to the Union that only the first and regular shift from 6 A.M.
to 2 P.M. should report for work in order that loss or damage to the firm will be averted. This stand
failed appreciate the sine qua non of an effective demonstration especially by a labor union, namely
the complete unity of the Union members as well as their total presence at the demonstration site in
order to generate the maximum sympathy for the validity of their cause but also immediately action
on the part of the corresponding government agencies with jurisdiction over the issues they raised
against the local police. Circulation is one of the aspects of freedom of expression. 21 If
demonstrators are reduced by one-third, then by that much the circulation of the issues raised by the
demonstration is diminished. The more the participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a
substantial indication of disunity in their ranks which will enervate their position and abet continued
alleged police persecution. At any rate, the Union notified the company two days in advance of their
projected demonstration and the company could have made arrangements to counteract or prevent
whatever losses it might sustain by reason of the absence of its workers for one day, especially in
this case when the Union requested it to excuse only the day-shift employees who will join the
demonstration on March 4, 1969 which request the Union reiterated in their telegram received by the
company at 9:50 in the morning of March 4, 1969, the day of the mass demonstration (pp. 42-43,
rec.). There was a lack of human understanding or compassion on the part of the firm in rejecting the
request of the Union for excuse from work for the day shifts in order to carry out its mass

610
demonstration. And to regard as a ground for dismissal the mass demonstration held against the
Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is
as unchristian as it is unconstitutional.

III

The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of
the respondent firm to permit all its employees and workers to join the mass demonstration against
alleged police abuses and the subsequent separation of the eight (8) petitioners from the service
constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and
freedom petition for redress of grievances, the respondent firm committed an unfair labor practice
defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise known as the
Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right "to
engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair
labor practice for an employer interfere with, restrain or coerce employees in the exercise their rights
guaranteed in Section Three."

We repeat that the obvious purpose of the mass demonstration staged by the workers of the
respondent firm on March 4, 1969, was for their mutual aid and protection against alleged police
abuses, denial of which was interference with or restraint on the right of the employees to engage in
such common action to better shield themselves against such alleged police indignities. The
insistence on the part of the respondent firm that the workers for the morning and regular shift
should not participate in the mass demonstration, under pain of dismissal, was as heretofore stated,
"a potent means of inhibiting speech." 22

Such a concerted action for their mutual help and protection deserves at least equal protection as
the concerted action of employees in giving publicity to a letter complaint charging bank president
with immorality, nepotism, favoritism an discrimination in the appointment and promotion of ban
employees. 23 We further ruled in the Republic Savings Bank case, supra, that for the employees to
come within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act No. 875,
"it is not necessary that union activity be involved or that collective bargaining be contemplated," as
long as the concerted activity is for the furtherance of their interests. 24

As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court
dated September 15, 1969, the company, "while expressly acknowledging, that the demonstration is
an inalienable right of the Union guaranteed by the Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly prejudice the normal operation of the company" and
"warned the PBMEO representatives that workers who belong to the first and regular shifts, who
without previous leave of absence approved by the Company, particularly the officers present who
are the organizers of the demonstration, who shall fail to report for work the following morning
(March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of
dismissal tended to coerce the employees from joining the mass demonstration. However, the
issues that the employees raised against the local police, were more important to them because they
had the courage to proceed with the demonstration, despite such threat of dismissal. The most that
could happen to them was to lose a day's wage by reason of their absence from work on the day of
the demonstration. One day's pay means much to a laborer, more especially if he has a family to
support. Yet, they were willing to forego their one-day salary hoping that their demonstration would
bring about the desired relief from police abuses. But management was adamant in refusing to
recognize the superior legitimacy of their right of free speech, free assembly and the right to petition
for redress.

611
Because the respondent company ostensibly did not find it necessary to demand from the workers
proof of the truth of the alleged abuses inflicted on them by the local police, it thereby concedes that
the evidence of such abuses should properly be submitted to the corresponding authorities having
jurisdiction over their complaint and to whom such complaint may be referred by the President of the
Philippines for proper investigation and action with a view to disciplining the local police officers
involved.

On the other hand, while the respondent Court of Industrial Relations found that the demonstration
"paralyzed to a large extent the operations of the complainant company," the respondent Court of
Industrial Relations did not make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss or damage. It did not
present evidence as to whether it lost expected profits for failure to comply with purchase orders on
that day; or that penalties were exacted from it by customers whose orders could not be filled that
day of the demonstration; or that purchase orders were cancelled by the customers by reason of its
failure to deliver the materials ordered; or that its own equipment or materials or products were
damaged due to absence of its workers on March 4, 1969. On the contrary, the company saved a
sizable amount in the form of wages for its hundreds of workers, cost of fuel, water and electric
consumption that day. Such savings could have amply compensated for unrealized profits or
damages it might have sustained by reason of the absence of its workers for only one day.

IV

Apart from violating the constitutional guarantees of free speech and assembly as well as the right to
petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the
workers for proceeding with the demonstration and consequently being absent from work,
constitutes a denial of social justice likewise assured by the fundamental law to these lowly
employees. Section 5 of Article II of the Constitution imposes upon the State "the promotion of social
justice to insure the well-being and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall
afford protection to labor ...". Respondent Court of Industrial Relations as an agency of the State is
under obligation at all times to give meaning and substance to these constitutional guarantees in
favor of the working man; for otherwise these constitutional safeguards would be merely a lot of
"meaningless constitutional patter." Under the Industrial Peace Act, the Court of Industrial Relations
is enjoined to effect the policy of the law "to eliminate the causes of industrial unrest by encouraging
and protecting the exercise by employees of their right to self-organization for the purpose of
collective bargaining and for the promotion of their moral, social and economic well-being." It is most
unfortunate in the case at bar that respondent Court of Industrial Relations, the very governmental
agency designed therefor, failed to implement this policy and failed to keep faith with its avowed
mission — its raison d'etre — as ordained and directed by the Constitution.

It has been likewise established that a violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment is null and void and confers no rights. Relief from a
criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through
habeas corpus proceedings even long after the finality of the judgment. Thus, habeas corpus is the
remedy to obtain the release of an individual, who is convicted by final judgment through a forced
confession, which violated his constitutional right against self-incrimination; 25 or who is denied the
right to present evidence in his defense as a deprivation of his liberty without due process of
law, 26 even after the accused has already served sentence for twenty-two years. 27

612
Both the respondents Court of Industrial Relations and private firm trenched upon these
constitutional immunities of petitioners. Both failed to accord preference to such rights and
aggravated the inhumanity to which the aggrieved workers claimed they had been subjected by the
municipal police. Having violated these basic human rights of the laborers, the Court of Industrial
Relations ousted itself of jurisdiction and the questioned orders it issued in the instant case are a
nullity. Recognition and protection of such freedoms are imperative on all public offices including the
courts 28 as well as private citizens and corporations, the exercise and enjoyment of which must not
be nullified by mere procedural rule promulgated by the Court Industrial Relations exercising a
purely delegate legislative power, when even a law enacted by Congress must yield to the
untrammelled enjoyment of these human rights. There is no time limit to the exercise of the
freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one
article or the staging of one demonstration. It is a continuing immunity to be invoked and exercised
when exigent and expedient whenever there are errors to be rectified, abuses to be denounced,
inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by
rule on procedure prescribing the period for appeal. The battle then would be reduced to a race for
time. And in such a contest between an employer and its laborer, the latter eventually loses because
he cannot employ the best an dedicated counsel who can defend his interest with the required
diligence and zeal, bereft as he is of the financial resources with which to pay for competent legal
services. 28-a

VI

The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ
should filed within five (5) days from notice thereof and that the arguments in support of said motion
shall be filed within ten (10) days from the date of filing of such motion for reconsideration (Sec. 16).
As above intimated, these rules of procedure were promulgated by the Court of Industrial Relations
pursuant to a legislative delegation. 29

The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on
September 22, 1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim
that they could have filed it on September 28, 1969, but it was a Sunday.

Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of
the petitioning employees? Or more directly and concretely, does the inadvertent omission to comply
with a mere Court of Industrial Relations procedural rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated pursuant to a legislative delegation, prevail
over constitutional rights? The answer should be obvious in the light of the aforecited cases. To
accord supremacy to the foregoing rules of the Court of Industrial Relations over basic human rights
sheltered by the Constitution, is not only incompatible with the basic tenet of constitutional
government that the Constitution is superior to any statute or subordinate rules and regulations, but
also does violence to natural reason and logic. The dominance and superiority of the constitutional
right over the aforesaid Court of Industrial Relations procedural rule of necessity should be affirmed.
Such a Court of Industrial Relations rule as applied in this case does not implement or reinforce or
strengthen the constitutional rights affected,' but instead constrict the same to the point of nullifying
the enjoyment thereof by the petitioning employees. Said Court of Industrial Relations rule,
promulgated as it was pursuant to a mere legislative delegation, is unreasonable and therefore is
beyond the authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieved workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeals
and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re
hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of
Court). The delay in the filing of the motion for reconsideration could have been only one day if

613
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial are concerned.

It should be stressed here that the motion for reconsideration dated September 27, 1969, is based
on the ground that the order sought to be reconsidered "is not in accordance with law, evidence and
facts adduced during the hearing," and likewise prays for an extension of ten (10) days within which
to file arguments pursuant to Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations
(Annex "G", pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners on
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for the filing of
such supporting arguments counted from the filing of the motion for reconsideration. Herein
petitioners received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the
motion for reconsideration for being pro forma since it was filed beyond the reglementary period
(Annex "J", pp. 74-75, rec.)

It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or
where the arguments in suppf such motion are filed beyond the 10 day reglementary period provided
for by the Court of Industrial Relations rules, the order or decision subject of29-a reconsideration
becomes final and unappealable. But in all these cases, the constitutional rights of free expression,
free assembly and petition were not involved.

It is a procedural rule that generally all causes of action and defenses presently available must be
specifically raised in the complaint or answer; so that any cause of action or defense not raised in
such pleadings, is deemed waived. However, a constitutional issue can be raised any time, even for
the first time on appeal, if it appears that the determination of the constitutional issue is necessary to
a decision of the case, the very lis mota of the case without the resolution of which no final and
complete determination of the dispute can be made. 30 It is thus seen that a procedural rule of
Congress or of the Supreme Court gives way to a constitutional right. In the instant case, the
procedural rule of the Court of Industrial Relations, a creature of Congress, must likewise yield to the
constitutional rights invoked by herein petitioners even before the institution of the unfair labor
practice charged against them and in their defense to the said charge.

In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is
a most compelling reason to deny application of a Court of Industrial Relations rule which impinges
on such human rights. 30-a

It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules
or to except a particular case from its operation, whenever the purposes of justice require." 30-b Mr.
Justice Barredo in his concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle
and added that

Under this authority, this Court is enabled to cove with all situations without
concerning itself about procedural niceties that do not square with the need to do
justice, in any case, without further loss of time, provided that the right of the parties
to a full day in court is not substantially impaired. Thus, this Court may treat an
appeal as a certiorari and vice-versa. In other words, when all the material facts are
spread in the records before Us, and all the parties have been duly heard, it matters
little that the error of the court a quo is of judgment or of jurisdiction. We can then
and there render the appropriate judgment. Is within the contemplation of this
doctrine that as it is perfectly legal and within the power of this Court to strike down in
an appeal acts without or in excess of jurisdiction or committed with grave abuse of
discretion, it cannot be beyond the admit of its authority, in appropriate cases, to
reverse in a certain proceed in any error of judgment of a court a quo which cannot

614
 be exactly categorized as a flaw of jurisdiction. If there can be any doubt, which I do
not entertain, on whether or not the errors this Court has found in the decision of the
Court of Appeals are short of being jurisdiction nullities or excesses, this Court would
still be on firm legal grounds should it choose to reverse said decision here and
now even if such errors can be considered as mere mistakes of judgment or only as
faults in the exercise of jurisdiction, so as to avoid the unnecessary return of this
case to the lower court for the sole purpose of pursuing the ordinary course of an
appeal. (Emphasis supplied). 30-d

Insistence on the application of the questioned Court industrial Relations rule in this particular case
at bar would an unreasoning adherence to "Procedural niceties" which denies justice to the herein
laborers, whose basic human freedoms, including the right to survive, must be according supremacy
over the property rights of their employer firm which has been given a full hearing on this case,
especially when, as in the case at bar, no actual material damage has be demonstrated as having
been inflicted on its property rights.

If We can disregard our own rules when justice requires it, obedience to the Constitution renders
more imperative the suspension of a Court of Industrial Relations rule that clash with the human
rights sanctioned and shielded with resolution concern by the specific guarantees outlined in the
organic law. It should be stressed that the application in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein respondent firm is unreasonable and therefore such
application becomes unconstitutional as it subverts the human rights of petitioning labor union and
workers in the light of the peculiar facts and circumstances revealed by the record.

The suspension of the application of Section 15 of the Court of Industrial Relations rules with
reference to the case at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R.
charter, which enjoins the Court of Industrial Relations to "act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal forms ..."

On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo,
speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus:

As to the point that the evidence being offered by the petitioners in the motion for
new trial is not "newly discovered," as such term is understood in the rules of
procedure for the ordinary courts, We hold that such criterion is not binding upon the
Court of Industrial Relations. Under Section 20 of Commonwealth Act No. 103, 'The
Court of Industrial Relations shall adopt its, rules or procedure and shall have such
other powers as generally pertain to a court of justice: Provided, however, That in the
hearing, investigation and determination of any question or controversy and in
exercising any duties and power under this Act, the Court shall act according to
justice and equity and substantial merits of the case, without regard to technicalities
or legal forms and shall not be bound by any technical rules of legal evidence but
may inform its mind in such manner as it may deem just and equitable.' By this
provision the industrial court is disengaged from the rigidity of the technicalities
applicable to ordinary courts. Said court is not even restricted to the specific relief
demanded by the parties but may issue such orders as may be deemed necessary
or expedient for the purpose of settling the dispute or dispelling any doubts that may
give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We
believe that this provision is ample enough to have enabled the respondent court to
consider whether or not its previous ruling that petitioners constitute a minority was
founded on fact, without regard to the technical meaning of newly discovered

615
 evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578).
(emphasis supplied.)

To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case
is to rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer
seek the sanctuary of human freedoms secured to them by the fundamental law, simply because
their counsel — erroneously believing that he received a copy of the decision on September 23,
1969, instead of September 22, 1969 - filed his motion for reconsideration September 29, 1969,
which practically is only one day late considering that September 28, 1969 was a Sunday.

Many a time, this Court deviated from procedure technicalities when they ceased to be instruments
of justice, for the attainment of which such rules have been devised. Summarizing the jurisprudence
on this score, Mr. Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:

As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315
[1910]. The Villamor decision was cited with approval in Register of Deeds v. Phil.
Nat. Bank, 84 Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958]
and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to justice and becomes its
great hindrance and chief enemy, deserves scant consideration from courts." (Ibid.,
p, 322.) To that norm, this Court has remained committed. The late Justice Recto in
Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the
interpretation of procedural rule should never "sacrifice the ends justice." While
"procedural laws are no other than technicalities" view them in their entirety, 'they
were adopted not as ends themselves for the compliance with which courts have
organized and function, but as means conducive to the realization the administration
of the law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice of substantial rights of a
litigant in altar of sophisticated technicalities with impairment of the sacred principles
of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As succinctly
put by Justice Makalintal, they "should give way to the realities of the situation."
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest
decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing
McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was
partial to an earlier formulation of Justice Labrador that rules of procedure "are not to
be applied in a very rigid, technical sense"; but are intended "to help secure
substantial justice." (Ibid., p. 843) ... 30-g

Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the
dismissal or termination of the employment of the petitioning eight (8) leaders of the Union is harsh
for a one-day absence from work. The respondent Court itself recognized the severity of such a
sanction when it did not include the dismissal of the other 393 employees who are members of the
same Union and who participated in the demonstration against the Pasig police. As a matter of fact,
upon the intercession of the Secretary of Labor, the Union members who are not officers, were not
dismissed and only the Union itself and its thirteen (13) officers were specifically named as
respondents in the unfair labor practice charge filed against them by the firm (pp. 16-20,
respondent's Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent firm
insinuates that not all the 400 or so employee participated in the demonstration, for which reason
only the Union and its thirteen (13) officers were specifically named in the unfair labor practice
charge (p. 20, respondent's brief). If that were so, then many, if not all, of the morning and regular
shifts reported for work on March 4, 1969 and that, as a consequence, the firm continued in
operation that day and did not sustain any damage.

616
The appropriate penalty — if it deserves any penalty at all — should have been simply to charge
said one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the
petitioner Union is a most cruel penalty, since as aforestated the Union leaders depend on their
wages for their daily sustenance as well as that of their respective families aside from the fact that it
is a lethal blow to unionism, while at the same time strengthening the oppressive hand of the petty
tyrants in the localities.

Mr. Justice Douglas articulated this pointed reminder:

The challenge to our liberties comes frequently not from those who consciously seek
to destroy our system of Government, but from men of goodwill — good men who
allow their proper concerns to blind them to the fact that what they propose to
accomplish involves an impairment of liberty.

... The Motives of these men are often commendable. What we must remember,
however, is thatpreservation of liberties does not depend on motives. A suppression
of liberty has the same effect whether the suppress or be a reformer or an outlaw.
The only protection against misguided zeal is a constant alertness of the infractions
of the guarantees of liberty contained in our Constitution. Each surrender of liberty to
the demands of the moment makes easier another, larger surrender. The battle over
the Bill of Rights is a never ending one.

... The liberties of any person are the liberties of all of us.

... In short, the Liberties of none are safe unless the liberties of all are protected.

... But even if we should sense no danger to our own liberties, even if we feel secure
because we belong to a group that is important and respected, we must recognize
that our Bill of Rights is a code of fair play for the less fortunate that we in all honor
and good conscience must be observe. 31

The case at bar is worse.

Management has shown not only lack of good-will or good intention, but a complete lack of
sympathetic understanding of the plight of its laborers who claim that they are being subjected to
indignities by the local police, It was more expedient for the firm to conserve its income or profits
than to assist its employees in their fight for their freedoms and security against alleged petty
tyrannies of local police officers. This is sheer opportunism. Such opportunism and expediency
resorted to by the respondent company assaulted the immunities and welfare of its employees. It
was pure and implement selfishness, if not greed.

Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the petitioner
Bank dismissed eight (8) employees for having written and published "a patently libelous letter ... to
the Bank president demanding his resignation on the grounds of immorality, nepotism in the
appointment and favoritism as well as discrimination in the promotion of bank employees." Therein,
thru Mr. Justice Castro, We ruled:

It will avail the Bank none to gloat over this admission of the respondents. Assuming
that the latter acted in their individual capacities when they wrote the letter-charge
they were nonetheless protected for they were engaged in concerted activity, in the
exercise of their right of self organization that includes concerted activity for mutual
aid and protection, (Section 3 of the Industrial Peace Act ...) This is the view of some

617
 members of this Court. For, as has been aptly stated, the joining in protests or
demands, even by a small group of employees, if in furtherance of their interests as
such, is a concerted activity protected by the Industrial Peace Act. It is not necessary
that union activity be involved or that collective bargaining be contemplated. (Annot.,
6 A.L.R. 2d 416 [1949]).

xxx xxx xxx

Instead of stifling criticism, the Bank should have allowed the respondents to air their
grievances.

xxx xxx xxx

The Bank defends its action by invoking its right to discipline for what it calls the
respondents' libel in giving undue publicity to their letter-charge. To be sure, the right
of self-organization of employees is not unlimited (Republic Aviation Corp. vs. NLRB
324 U.S. 793 [1945]), as the right of the employer to discharge for cause (Philippine
Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is
undenied. The Industrial Peace Act does not touch the normal exercise of the right of
the employer to select his employees or to discharge them. It is directed solely
against the abuse of that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])...

xxx xxx xxx

In the final sum and substance, this Court is in unanimity that the Bank's conduct,
identified as an interference with the employees' right of self-organization or as a
retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair
labor practice within the meaning and intendment of section 4(a) of the Industrial
Peace Act. (Emphasis supplied.) 33

If free expression was accorded recognition and protection to fortify labor unionism in the Republic
Savings case, supra, where the complaint assailed the morality and integrity of the bank president
no less, such recognition and protection for free speech, free assembly and right to petition are
rendered all the more justifiable and more imperative in the case at bar, where the mass
demonstration was not against the company nor any of its officers.

WHEREFORE, judgement is hereby rendered:

(1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated
September 15 and October 9, 1969; and

(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of
their separation from the service until re instated, minus one day's pay and whatever earnings they
might have realized from other sources during their separation from the service.

G.R. No. 169838 April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose

Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.

618
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents.

x---------------------------------x

G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo,
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito
Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District
(MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

x---------------------------------x

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO
C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers
of the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No.
169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently dispersed by the police. They further

619
assert that on October 5, 2005, a group they participated in marched to Malacañang to protest
issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They further allege that on October 6,
2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España
Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5,
6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies
under the "no permit, no rally" policy and the CPR policy recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of
the State. To this end, the State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. – For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

620
 The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.

(d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.

Sec. 4. Permit when required and when not required. – A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Sec. 5. Application requirements. – All applications for a permit shall comply with the following
guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.

Sec. 6. Action to be taken on the application. –

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.

621
 (b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-
four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be immediately
executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit; |avv phi| .net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

622
 (d) To see to it that the public assembly undertaken shall not go beyond the time stated in
the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision

623
 of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,

bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by

the use of a motor vehicle, its horns and loud sound systems.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in
the immediately preceding section shall be punished as follows:

624
 (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.

Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances
or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended,
or modified accordingly.

Sec. 18. Effectivity. – This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21,
2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:

Malacañang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the
land as well as ordinances on the proper conduct of mass actions and demonstrations.

625
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of
a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless
of the presence or absence of a clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The words "lawful cause," "opinion,"
"protesting or influencing" suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it puts
a condition for the valid exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly
and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits provided are unreasonable: First,
allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as
certain events require instant public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before
the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.

626
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila
City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila
Police District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had
been "injured, arrested or detained because of the CPR," and that "those arrested stand to
be charged with violating Batas Pambansa [No.] 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the
time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test
for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the
statement of the public assembly’s time, place and manner of conduct. It entails traffic re-
routing to prevent grave public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of
B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time,
place and manner of holding public assemblies and the law passes the test for such
regulation, namely, these regulations need only a substantial governmental interest to
support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the
authority to exercise police power to meet "the demands of the common good in terms of
traffic decongestion and public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence
that the public assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call it

627
 a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R.
No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power
to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and
present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation
because it covers all rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)

and 14(a) thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration
of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response

(CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were approved
and/or noted by the Court:

1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of
their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no
longer be used as a legal term inasmuch as, according to respondents, it was merely a
"catchword" intended to clarify what was thought to be a misunderstanding of the maximum

628
 tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing
developments.

Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and
parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v.
Apurado,16 already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners’ rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by
no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending
and promoting the people’s exercise of these rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:

"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. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."

629
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and
to assembly and petition over comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias,
this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:

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." 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. There
is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil that [the State]
has a right to prevent." Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it
was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with 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. In every case, therefore, where 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.

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.

630
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." What was rightfully stressed is the abandonment
of reason, the utterance, whether verbal or printed, being in a context of 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: "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." 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.

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: "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 must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias
made explicit what was implicit in Municipality of Cavite v. Rojas, 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 plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," 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 proposed march and rally starting from a public park 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 blocks 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

631
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox
v. 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 be permitted unless a special license therefor shall first be obtained 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, * * *. "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."

xxx

6. x x x 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." There 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."

xxx

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

632
 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, they 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. x x
x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
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, they can
have recourse to the proper judicial
authority.
Sec. 4. Permit when required and when not
required.-- A written permit shall be required
for any person or persons to organize and
hold a public assembly in a public place.
However, no permit shall be required if the
public assembly shall be done or made in a
freedom park duly established by law or
ordinance or in private property, in which
case only the consent of the owner or the
one entitled to its legal possession is
required, or in the campus of a government-
owned and operated educational institution
which shall be subject to the rules and
regulations of said educational institution.
Political meetings or rallies held during any
election campaign period as provided for by
law are not covered by this Act.
Sec. 5. Application requirements.-- All
applications for a permit shall comply with
the following guidelines:
(a) The applications shall be in
writing and shall include the names
of the leaders or organizers; the
purpose of such public assembly; the
date, time and duration thereof, and
place or streets to be used for the
intended activity; and the probable
number of persons participating, the

633
 transport and the public address
systems to be used.

(b) The application shall incorporate

the duty and responsibility of
applicant under Section 8 hereof.

(c) The application shall be filed with

the office of the mayor of the city or
municipality in whose jurisdiction the
intended activity is to be held, at
least five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application,

which must be duly acknowledged in
writing, the office of the city or
municipal mayor shall cause the
same to immediately be posted at a
conspicuous place in the city or
municipal building.

Sec. 6. Action to be taken on the application.

–

(a) It shall be the duty of the mayor

or any official acting in his behalf to
issue or grant a permit unless there
is clear and convincing evidence that
the public assembly will create a
clear and present danger to public
order, public safety, public
convenience, public morals or public
health.

(b) The mayor or any official acting in

his behalf shall act on the application
within two (2) working days from the
date the application was filed, failing
which, the permit shall be deemed
granted. Should for any reason the
mayor or any official acting in his
behalf refuse to accept the
application for a permit, said
application shall be posted by the
applicant on the premises of the
office of the mayor and shall be
deemed to have been filed.

634
 (c) If the mayor is of the view that
there is imminent and grave danger
of a substantive evil warranting the
denial or modification of the permit,
he shall immediately inform the
applicant who must be heard on the
matter.

(d) The action on the permit shall be

in writing and served on the
applica[nt] within twenty-four hours.

(e) If the mayor or any official acting

in his behalf denies the application or
modifies the terms thereof in his
permit, the applicant may contest the
decision in an appropriate court of
law.

(f) In case suit is brought before the

Metropolitan Trial Court, the
Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial
Court, or the Intermediate Appellate
Court, its decisions may be appealed
to the appropriate court within forty-
eight (48) hours after receipt of the
same. No appeal bond and record on
appeal shall be required. A decision
granting such permit or modifying it
in terms satisfactory to the applicant
shall be immediately executory.

(g) All cases filed in court under this

section shall be decided within
twenty-four (24) hours from date of
filing. Cases filed hereunder shall be
immediately endorsed to the
executive judge for disposition or, in
his absence, to the next in rank.

(h) In all cases, any decision may be

appealed to the Supreme Court.

(i) Telegraphic appeals to be

followed by formal appeals are
hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was adverted to

635
in Osmeña v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time,
place, and manner of holding public assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22 that would use public places. The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful causes, otherwise they would not be
"peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing"
in the definition of public assembly content based, since they can refer to any subject. The words
"petitioning the government for redress of grievances" come from the wording of the Constitution, so
its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:

636
 (a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public
health or morals.

Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public"
does not have to be defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common

interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place." So it does
not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress has
the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the
clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a
substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in
their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through
the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at
any time:

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park – Fuente Osmeña.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set
aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be

637
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the law’s system of
regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or municipality until that
city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the
legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law
which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the
dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.

16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the
PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. – For purposes of this Act:

638
 xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

xxx

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
1avv phil.net

agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

639
 (d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to
disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity
of the public assembly or on the occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who can show the police an application duly filed on a given
date can, after two days from said date, rally in accordance with their application without the need to
show a permit, the grant of the permit being then presumed under the law, and it will be the burden
of the authorities to show that there has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected
to heightenedscrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our

640
people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot
be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates
the use of public places as to the time, place and manner of assemblies. Far from being insidious,
"maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section
15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the police and the mayor’s office to allow
proper coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the
immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the
law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.

BATAS PAMBANSA BLG. 880

AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY
TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES

Section 1. Title - This Act shall be known as "The Public Assembly Act of 1985."

Section 2. Declaration of policy - The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of
the State. To this end, the State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.

Section 3. Definition of terms - For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances: Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

641
 The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.

(d) "Modification of permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.

Section 4. Permit when required and when not required - A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Section 5. Application requirements - All applications for a permit shall comply with the following
guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of applicant under Section 8
hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.

Section 6. Action to be taken on the application -

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.

642
 (b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the application within twenty-
four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall, be immediately
executory.

(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Section 7. Use of public thoroughfare - Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.

Section 8. Responsibility of applicant - It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit;

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

643
 (d) To see to it that the public assembly undertaken shall not go beyond the time stated in
the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Section 9. Non-interference by law enforcement authorities - Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meter away from the area of activity ready to
maintain peace and order at all times.

Section 10. Police assistance when requested - It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Section 11. Dispersal of public assembly with permit - No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbances prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision

644
 of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended:

(e) Isolated acts or incidents of disorder or branch of the peace during the public assembly
shall not constitute a group for dispersal.

Section 12. Dispersal of public assembly without permit - When the public assembly is held without
a permit where a permit is required, the said public assembly may be peacefully dispersed.

Section 13. Prohibited acts - The following shall constitute violations of this Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf.

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof;

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,

bomb, and the like;

2. the carrying of a bladed weapon and the like;

3 the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by

the use of a motor vehicle, its horns and loud sound systems.

Section 14. Penalties - Any person found guilty and convicted of any of the prohibited acts defined
in the immediately preceding Section shall be punished as follows:

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 (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Section 15. Freedom parks - Every city and municipality in the country shall within six months after
the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity of this Act.

Section 16. Constitutionality - Should any provision of this Act be declared invalid or
unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby.

Section 17. Repealing clause - All laws, decrees, letters of instructions, resolutions, orders,
ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby
repealed, amended, or modified accordingly.

Section 18. Effectivity - This Act shall take effect upon its approval.

Approved, October 22, 1985.

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