SECTION 1.

INHERENT AND INALIENABLE RIGHTS All men are by nature free and independent and have certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed. VILLEGAS VS. HIU CHIONG [86 SCRA 270; NO.L-29646; 10 NOV 1978] Sunday, February 01, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: The controverted Ordinance no. 6537 was passed by the Municipal Board of Manila on February 22, 1968 and signed by Mayor Villegas. It is 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 securing an employment permit from the Mayor of Manila and for other purposes. Hiu Chiong Tsai Pao Ho, who was employed in Manila filed a petition praying for the writ of preliminary injunction and restraining order to stop the enforcement of said ordinance.

Issue: Whether processand equal

or

Not Ordinance no.6537 protection clauses of the

violates

the due Constitution.

Held: It is a revenue measure. The city ordinance which imposes a fee of 50.00 pesos to enable aliens generally to be employed in the city of Manila is not only for the purpose of regulation.

While it is true that the first part which requires the alien to secure anemployment permit from the Mayor involves the exercise of discretion and judgment in processing and approval or disapproval of application is

regulatory in character, the second part which requires the payment of a sum of 50.00 pesos is not a regulatory but a revenue measure. Ordinance no. 6537 is void and unconstitutional. This is tantamount to denial of the basic human right of the people in the Philippines to engaged in a means of livelihood. While it is true that the Philippinesas a state is not obliged to admit aliens within it's territory, once an alien is admitted he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. Also it does not lay down any standard to guide the City Mayor in the issuance or denial of an alien employment permit fee.

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. 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)( fransico Garcia(judge))
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. 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 I 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 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. 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. SO ORDERED. Barredo, Makasiar, Muoz Palma, Santos and Guerrero, JJ., concur. Castro, C.J., Antonio and Aquino, Fernando, JJ., concur in the result. Concepcion, Jr., J., took no part.

Separate Opinions

TEEHANKEE, J., concurring: I concur in the decision penned by Mr. Justice Fernandez which affirms the lower court's judgment declaring Ordinance No. 6537 of the City of Manila null and void for the reason that the employment of aliens within the country is a matter of national policy

and regulation, which properly pertain to the national government officials and agencies concerned and not to local governments, such as the City of Manila, which after all are mere creations of the national government. The national policy on the matter has been determined in the statutes enacted by the legislature, viz, the various Philippine nationalization laws which on the whole recognize the right of aliens to obtain gainful employment in the country with the exception of certain specific fields and areas. Such national policies may not be interfered with, thwarted or in any manner negated by any local government or its officials since they are not separate from and independent of the national government. As stated by the Court in the early case of Phil. Coop. Livestock Ass'n. vs. Earnshaw, 59 Phil. 129: "The City of Manila is a subordinate body to the Insular (National Government ...). When the Insular (National) Government adopts a policy, a municipality is without legal authority to nullify and set at naught the action of the superior authority." Indeed, "not only must all municipal powers be exercised within the limits of the organic laws, but they must be consistent with the general law and public policy of the particular state ..." (I McQuillin, Municipal Corporations, 2nd sec. 367, P. 1011). With more reason are such national policies binding on local governments when they involve our foreign relations with other countries and their nationals who have been lawfully admitted here, since in such matters the views and decisions of the Chief of State and of the legislature must prevail over those of subordinate and local governments and officials who have no authority whatever to take official acts to the contrary.

Separate Opinions TEEHANKEE, J., concurring: I concur in the decision penned by Mr. Justice Fernandez which affirms the lower court's judgment declaring Ordinance No. 6537 of the City of Manila null and void for the reason that the employment of aliens within the country is a matter of national policy and regulation, which properly pertain to the national government officials and agencies concerned and not to local governments, such as the City of Manila, which after all are mere creations of the national government. The national policy on the matter has been determined in the statutes enacted by the legislature, viz, the various Philippine nationalization laws which on the whole recognize the right of aliens to obtain gainful employment in the country with the exception of certain specific fields and areas. Such national policies may not be interfered with,

thwarted or in any manner negated by any local government or its officials since they are not separate from and independent of the national government. As stated by the Court in the early case of Phil. Coop. Livestock Ass'n. vs. Earnshaw, 59 Phil. 129: "The City of Manila is a subordinate body to the Insular (National Government ...). When the Insular (National) Government adopts a policy, a municipality is without legal authority to nullify and set at naught the action of the superior authority." Indeed, "not only must all municipal powers be exercised within the limits of the organic laws, but they must be consistent with the general law and public policy of the particular state ..." (I McQuillin, Municipal Corporations, 2nd sec. 367, P. 1011). With more reason are such national policies binding on local governments when they involve our foreign relations with other countries and their nationals who have been lawfully admitted here, since in such matters the views and decisions of the Chief of State and of the legislature must prevail over those of subordinate and local governments and officials who have no authority whatever to take official acts to the contrary. Footnotes 1 Annex "F", Petition, Rollo, p. 64. 2 Petition, Rollo, p. 28. 3 Annex "A", of Petition, Rollo, p. 37-38. 4 Section 1. It shall he unlawful for any person not a citizen of the Philippines to be employed in any kind of position or occupation or allowed directly or indirectly to participate in the functions, administration or management in any office, corporation, store, restaurant, factory, business firm, or any other place of employment either as consultant, adviser, clerk, employee, technician, teacher, actor, actress, acrobat, singer or other theatrical performer, laborer, cook, etc., whether temporary, casual, permanent or otherwise and irrespective of the source or origin of his compensation or number of hours spent in said office, store, restaurant, factory, corporation or any other place of employment, or to engage in any kind of business and trade within the City of Manila, without first securing an employment permit from the Mayor of Manila, and paying the necessary fee therefor to the City the City Treasurer: PROVIDED, HOWEVER, That persons employed in diplomatic and consular missions of foreign countries and in technical assistance programs agreed upon by the Philippine Government and any foreign government, and those working in their respective households, and members of different congregations or religious orders of any religion, sect or denomination,

who are not paid either monetarily or in kind shag be exempted from the provisions of this Ordinance. 5 Section 4. Any violation of this Ordinance shall upon conviction, be punished by imprisonment of not less than three (3) months but not more than six (6) months or by a fine of not less than one hundred pesos (P100.00) but not more than two hundred pesos (P200.00), or by both such fine and imprisonment, in the discretion of the Court: PROVIDED, HOWEVER, That in case of juridical persons, the President, the VicePresident or the person in charge shall be liable. 6 Annex "B", Petition, Rollo, p. 39. 7 Ibid 8 Annex "F", Petition, Rollo, pp. 75-83. 9 Petition, Rollo, p. 31. 10 People vs. Fajardo, 104 Phil. 443, 446. 11 89 Phil. 439, 459-460. 12 80 Phil. 86.13 Kwong Sing vs. City of Manila, 41 Phil, 103. PEOPLE VS. CAYAT [68 PHIL 12; G.R. NO. 45987; 5 MAY 1939] Monday, February 02, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: Law prohibits any member of a non-Christian tribe to buy, receive, have in his possession, or drink, any intoxicating liquors ofany kind. The law, Act No. 1639, exempts only the so-called native wines or liquors which the members of such tribes have been accustomed to take.

Issue: Whether or Not the law denies equal protection to one prosecuted and sentenced for violation of said law.

Held: No. It satisfies the requirements of a valid classification, one of which is that the classification under the law must rest on real or substantial

distinctions. The distinction is reasonable. The classification between the members of the non- Christian and the members of the Christian tribes is not based upon accident of birth or parentage but upon the degree of civilization and culture. The term non-Christian tribes refers to a geographical area and more directly to natives of the Philippines of a low grade civilization usually living in tribal relationship apart from settled communities. The distinction is reasonable for the Act was the intended nonto meet Christian the peculiar tribes conditions existing in

The prohibition is germane to the purposes of the law. It is designed to lawphil

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 146494 July 14, 2004

GOVERNMENT SERVICE INSURANCE SYSTEM, Cebu City Branch, petitioner, vs. MILAGROS O. MONTESCLAROS, respondent.

DECISION

CARPIO, J.: The Case This is a petition for review on certiorari of the Decision1 dated 13 December 2000 of the Court of Appeals in CAG.R. CV No. 48784. The Court of Appeals affirmed the Decision2 of the Regional Trial Court, Branch 21, Cebu

City ("trial court"), which held that Milagros Orbiso Montesclaros is entitled to survivorship pension. The Facts Sangguniang Bayan member Nicolas Montesclaros ("Nicolas") married Milagros Orbiso ("Milagros") on 10 July 1983.3 Nicolas was a 72- year old widower when he married Milagros who was then 43 years old. On 4 January 1985, Nicolas filed with the Government Service Insurance System ("GSIS") an application for retirement benefits effective 18 February 1985 under Presidential Decree No. 1146 or the Revised Government Service Insurance Act of 1977 ("PD 1146"). In his retirement application, Nicolas designated his wife Milagros as his sole beneficiary.4 Nicolas' last day of actual service was on 17 February 1985.5 On 31 January 1986, GSIS approved Nicolas' application for retirement "effective 17 February 1984," granting a lump sum payment of annuity for the first five years and a monthly annuity thereafter. 6 Nicolas died on 22 April 1992. Milagros filed with GSIS a claim for survivorship pension under PD 1146. On 8 June 1992, GSIS denied the claim because under Section 18 of PD 1146, the surviving spouse has no right to survivorship pension if the surviving spouse contracted the marriage with the pensioner within three years before the pensioner qualified for the pension.7 According to GSIS, Nicolas wed Milagros on 10 July 1983, less than one year from his date of retirement on "17 February 1984." On 2 October 1992, Milagros filed with the trial court a special civil action for declaratory relief questioning the validity of Section 18 of PD 1146 disqualifying her from receiving survivorship pension. On 9 November 1994, the trial court rendered judgment declaring Milagros eligible for survivorship pension. The trial court ordered GSIS to pay Milagros the benefits due including interest. Citing Articles 115 8 and 1179 of the Family Code, the trial court held that retirement benefits, which the pensioner has earned for services rendered and for which the pensioner has contributed through monthly salary deductions, are onerous acquisitions. Since retirement benefits are property the pensioner acquired through labor, such benefits are conjugal property. The trial court held that the prohibition in Section 18 of PD 1146 is deemed repealed for being inconsistent with the Family Code, a later law. The Family Code has retroactive effect if it does not prejudice or impair vested rights. GSIS appealed to the Court of Appeals, which affirmed the decision of the trial court. Hence, this petition for review. In the meantime, in a letter dated 10 January 2003, Milagros informed the Court that she has accepted GSIS' decision disqualifying her from receiving survivorship pension and that she is no longer interested in pursuing the case.10 Commenting on Milagros' letter, GSIS asserts that the Court must decide the case on the merits. 11 The Court will resolve the issue despite the manifestation of Milagros. The issue involves not only the claim of Milagros but also that of other surviving spouses who are similarly situated and whose claims GSIS would also deny based on the proviso. Social justice and public interest demand that we resolve the constitutionality of the proviso. The Ruling of the Court of Appeals The Court of Appeals agreed with the trial court that the retirement benefits are onerous and conjugal because the pension came from the deceased pensioner's salary deductions. The Court of Appeals held that the pension

is not gratuitous since it is a deferred compensation for services rendered. The Issues GSIS raises the following issues: 1. Whether Section 16 of PD 1146 entitles Milagros to survivorship pension; 2. Whether retirement benefits form part of conjugal property; 3. Whether Articles 254 and 256 of the Family Code repealed Section 18 of PD 1146. 12 The Court's Ruling The pertinent provisions of PD 1146 on survivorship benefits read: SEC. 16. Survivorship Benefits. When a member or pensioner dies, the beneficiary shall be entitled to survivorship benefits provided for in sections seventeen and eighteen hereunder. The survivorship pension shall consist of: (1) basic survivorship pension which is fifty percent of the basic monthly pension; and (2) dependent's pension not exceeding fifty percent of the basic monthly pension payable in accordance with the rules and regulations prescribed by the System. SEC. 17. Death of a Member. (a) Upon the death of a member, the primary beneficiaries shall be entitled to: (1) the basic monthly pension which is guaranteed for five years; Provided, That, at the option of the beneficiaries, it may be paid in lump sum as defined in this Act: Provided, further, That, the member is entitled to old-age pension at the time of his death; or (2) the basic survivorship pension which is guaranteed for thirty months and the dependent's pension; Provided, That, the deceased had paid at least thirty-six monthly contributions within the five-year period immediately preceding his death, or a total of at least one hundred eighty monthly contributions prior to his death. (b) At the end of the guaranteed periods mentioned in the preceding sub-section (a), the survivorship pension shall be paid as follows: (1) when the dependent spouse is the only survivor, he shall receive the basic survivorship pension for life or until he remarries; (2) when only dependent children are the survivors, they shall be entitled to the survivorship pension for as long as they are qualified;

(3) when the survivors are the dependent spouse and the dependent children, they shall be entitled to the survivorship pension so long as there are dependent children and, thereafter, the surviving spouse shall receive the basic survivorship pension for life or until he remarries. (c) In the absence of primary beneficiaries, the secondary beneficiaries designated by the deceased and recorded in the System, shall be entitled to: (1) a cash payment equivalent to thirty times the basic survivorship pension when the member is qualified for old-age pension; or (2) a cash payment equivalent to fifty percent of the average monthly compensation for each year he paid contributions, but not less than five hundred pesos; Provided, That, the member paid at least thirty-six monthly contributions within the five-year period immediately preceding his death or paid a total of at least one hundred eighty monthly contributions prior to his death. (d) When the primary beneficiaries are not entitled to the benefits mentioned in paragraph (a) of this section, they shall receive a cash payment equivalent to one hundred percent of the average monthly compensation for each year the member paid contributions, but not less than five hundred pesos. In the absence of primary beneficiaries, the amount shall revert to the funds of the System. SEC. 18. Death of a Pensioner. Upon the death of a pensioner, the primary beneficiaries shall receive the applicable pension mentioned under paragraph (b) of section seventeen of this Act: Provided, That, the dependent spouse shall not be entitled to said pension if his marriage with the pensioner is contracted within three years before the pensioner qualified for the pension. When the pensioner dies within the period covered by the lump sum, the survivorship pension shall be paid only after the expiration of the said period. This shall also apply to the pensioners living as of the effectivity of this Act, but the survivorship benefit shall be based on the monthly pension being received at the time of death. (Emphasis supplied) Under PD 1146, the primary beneficiaries are (1) the dependent spouse until such spouse remarries, and (2) the dependent children.13 The secondary beneficiaries are the dependent parents and legitimate descendants except dependent children.14 The law defines dependent as "the legitimate, legitimated, legally adopted, acknowledged natural or illegitimate child who is unmarried, not gainfully employed, and not over twenty-one years of age or is over twenty-one years of age but physically or mentally incapacitated and incapable of self-support." The term also includes the legitimate spouse dependent for support on the member, and the legitimate parent wholly dependent on the member for support. 15 The main question for resolution is the validity of the proviso in Section 18 of PD 1146, which proviso prohibits the dependent spouse from receiving survivorship pension if such dependent spouse married the pensioner within three years before the pensioner qualified for the pension ("the proviso"). We hold that the proviso, which was the sole basis for the rejection by GSIS of Milagros' claim, is unconstitutional because it violates the due process clause. The proviso is also discriminatory and denies equal protection of the law.

Retirement Benefits as Property Interest Under Section 5 of PD 1146, it is mandatory for the government employee to pay monthly contributions. PD 1146 mandates the government to include in its annual appropriation the necessary amounts for its share of the contributions. It is compulsory on the government employer to take off and withhold from the employees' monthly salaries their contributions and to remit the same to GSIS.16 The government employer must also remit its corresponding share to GSIS.17 Considering the mandatory salary deductions from the government employee, the government pensions do not constitute mere gratuity but form part of compensation. In a pension plan where employee participation is mandatory, the prevailing view is that employees have contractual or vested rights in the pension where the pension is part of the terms of employment.18 The reason for providing retirement benefits is to compensate service to the government. Retirement benefits to government employees are part of emolument to encourage and retain qualified employees in the government service. Retirement benefits to government employees reward them for giving the best years of their lives in the service of their country.19 Thus, where the employee retires and meets the eligibility requirements, he acquires a vested right to benefits that is protected by the due process clause.20 Retirees enjoy a protected property interest whenever they acquire a right to immediate payment under pre-existing law.21 Thus, a pensioner acquires a vested right to benefits that have become due as provided under the terms of the public employees' pension statute. 22 No law can deprive such person of his pension rights without due process of law, that is, without notice and opportunity to be heard.23 In addition to retirement and disability benefits, PD 1146 also provides for benefits to survivors of deceased government employees and pensioners. Under PD 1146, the dependent spouse is one of the beneficiaries of survivorship benefits. A widow's right to receive pension following the demise of her husband is also part of the husband's contractual compensation.24 Denial of Due Process The proviso is contrary to Section 1, Article III of the Constitution, which provides that "[n]o 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 proviso is unduly oppressive in outrightly denying a dependent spouse's claim for survivorship pension if the dependent spouse contracted marriage to the pensioner within the three-year prohibited period. There is outright confiscation of benefits due the surviving spouse without giving the surviving spouse an opportunity to be heard. The proviso undermines the purpose of PD 1146, which is to assure comprehensive and integrated social security and insurance benefits to government employees and their dependents in the event of sickness, disability, death, and retirement of the government employees. The "whereas" clauses of PD 1146 state: WHEREAS, the Government Service Insurance System in promoting the efficiency and welfare of the employees of the Government of the Philippines, administers the laws that grant to its members social security and insurance benefits; WHEREAS, it is necessary to preserve at all times the actuarial solvency of the funds administered

by the System; to guarantee to the government employee all the benefits due him; and to expand and increase the benefits made available to him and his dependents to the extent permitted by available resources; WHEREAS, provisions of existing laws have impeded the efficient and effective discharge by the System of its functions and have unduly hampered the System from being more responsive to the dramatic changes of the times and from meeting the increasing needs and expectations of the Filipino public servant; WHEREAS, provisions of existing laws that have prejudiced, rather than benefited, the government employee; restricted, rather than broadened, his benefits, prolonged, rather than facilitated the payment of benefits, must now yield to his paramount welfare; WHEREAS, the social security and insurance benefits of government employees must be continuously re-examined and improved to assure comprehensive and integrated social security and insurance programs that will provide benefits responsive to their needs and those of their dependents in the event of sickness, disability, death, retirement, and other contingencies; and to serve as a fitting reward for dedicated public service; WHEREAS, in the light of existing economic conditions affecting the welfare of government employees, there is a need to expand and improve the social security and insurance programs administered by the Government Service Insurance System, specifically, among others, by increasing pension benefits, expanding disability benefits, introducing survivorship benefits, introducing sickness and income benefits, and eventually extending the compulsory coverage of these programs to all government employees regardless of employment status. PD 1146 has the following purposes: a. to preserve at all times the actuarial solvency of the funds administered by the System; b. to guarantee to the government employee all the benefits due him; and c. to expand, increase, and improve the social security and insurance benefits made available to him and his dependents such as: increasing pension benefits expanding disability benefits introducing survivorship benefits introducing sickness income benefits extending compulsory membership to all government employees irrespective of status 25 The law extends survivorship benefits to the surviving and qualified beneficiaries of the deceased member or

pensioner to cushion the beneficiaries against the adverse economic effects resulting from the death of the wage earner or pensioner.26 Violation of the Equal Protection Clause The surviving spouse of a government employee is entitled to receive survivor's benefits under a pension system. However, statutes sometimes require that the spouse should have married the employee for a certain period before the employee's death to prevent sham marriages contracted for monetary gain. One example is the Illinois Pension Code which restricts survivor's annuity benefits to a surviving spouse who was married to a state employee for at least one year before the employee's death. The Illinois pension system classifies spouses into those married less than one year before a member's death and those married one year or more. The classification seeks to prevent conscious adverse risk selection of deathbed marriages where a terminally ill member of the pension system marries another so that person becomes eligible for benefits. In Sneddon v. The State Employee's Retirement System of Illinois,27 the Appellate Court of Illinois held that such classification was based on difference in situation and circumstance, bore a rational relation to the purpose of the statute, and was therefore not in violation of constitutional guarantees of due process and equal protection. A statute based on reasonable classification does not violate the constitutional guaranty of the equal protection of the law.28 The requirements for a valid and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class.29 Thus, the law may treat and regulate one class differently from another class provided there are real and substantial differences to distinguish one class from another.30 The proviso in question does not satisfy these requirements. The proviso discriminates against the dependent spouse who contracts marriage to the pensioner within three years before the pensioner qualified for the pension.31 Under the proviso, even if the dependent spouse married the pensioner more than three years before the pensioner's death, the dependent spouse would still not receive survivorship pension if the marriage took place within three years before the pensioner qualified for pension. The object of the prohibition is vague. There is no reasonable connection between the means employed and the purpose intended. The law itself does not provide any reason or purpose for such a prohibition. If the purpose of the proviso is to prevent " deathbed marriages," then we do not see why the proviso reckons the three-year prohibition from the date the pensioner qualified for pension and not from the date the pensioner died. The classification does not rest on substantial distinctions. Worse, the classification lumps all those marriages contracted within three years before the pensioner qualified for pension as having been contracted primarily for financial convenience to avail of pension benefits. Indeed, the classification is discriminatory and arbitrary. This is probably the reason Congress deleted the proviso in Republic Act No. 8291 ("RA 8291"),32 otherwise known as the "Government Service Insurance Act of 1997," the law revising the old charter of GSIS (PD 1146). Under the implementing rules of RA 8291, the surviving spouse who married the member immediately before the member's death is still qualified to receive survivorship pension unless the GSIS proves that the surviving spouse contracted the marriage solely to receive the benefit.33 Thus, the present GSIS law does not presume that marriages contracted within three years before retirement or death of a member are sham marriages contracted to avail of survivorship benefits. The present GSIS law does

not automatically forfeit the survivorship pension of the surviving spouse who contracted marriage to a GSIS member within three years before the member's retirement or death. The law acknowledges that whether the surviving spouse contracted the marriage mainly to receive survivorship benefits is a matter of evidence. The law no longer prescribes a sweeping classification that unduly prejudices the legitimate surviving spouse and defeats the purpose for which Congress enacted the social legislation. WHEREFORE, the petition is DENIED for want of merit. We declare VOID for being violative of the constitutional guarantees of due process and equal protection of the law the proviso in Section 18 of Presidential Decree No. 1146, which proviso states that "the dependent spouse shall not be entitled to said pension if his marriage with the pensioner is contracted within three years before the pensioner qualified for the pension." The Government Service Insurance System cannot deny the claim of Milagros O. Montesclaros for survivorship benefits based on this invalid proviso. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Footnotes
1

Penned by Associate Justice Ruben T. Reyes, with Associate Justices Mariano M. Umali and Rebecca de Guia-Salvador concurring.
2

Penned by Judge Peary G. Aleonar. See Marriage Contract; Records, p. 5. Records, p. 8. See Service Record; Records p. 70. Records, p. 112. Ibid., pp. 9, 12. Article 115 of the Family Code reads:

Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case.
9

Article 117 of the family Code reads:

Art. 117. The following are conjugal partnership properties: (1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses; (2) Those obtained from the labor, industry, work or profession of either or both of the spouses; xxx
10

Rollo, p. 78. Ibid., p. 84. Ibid., pp. 14-15. Sec. 2(g), PD 1146. Sec. 2(h), PD 1146. Sec. 2(f), PD 1146. Section 6, PD 1146. Ibid. 60A Am. Jur. 2d Pensions and Retirement Funds 1620 (1988). GSIS v. Civil Service Commission, 315 Phil. 159 (1995). 60A Am. Jur. 2d Pensions and Retirement Funds 1506 (1988). Zucker v. U.S., 758 F.2d 637 (CA Fed. Cir., 1985). Pennie v. Reis, 132 U.S. 464, 33 L.Ed. 426 (1889). Stevens v. Minneapolis Fire Department Relief Ass'n, 124 Minn 381, 141 NW 35 (1914). 60A Am. Jur. 2d Pensions and Retirement Funds 1620 (1988). Information Primer on Presidential Decree 1146 and other Benefits 14. Section 1, Rule VI of the Implementing Rules and Regulations of PD 1146, Rollo, p. 8. 388 N.E.2d 229 (1979).

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Farias v. The Executive Secretary, G.R. No. 147387, 10 December 2003; Villarea v. The Commission on Audit, G.R. Nos. 145383-84, 6 August 2003.
29

Philippine Rural Electric Cooperatives Association, Inc. (PHILRECA) v. The Secretary, Department of Interior and Local Government, G.R. No. 143076, 10 June 2003, 403 SCRA 558; Lacson v. The Executive Secretary, 361 Phil. 251 (1999); Tiu v. CA. 361 Phil. 229 (1999); People v. Cayat, 68 Phil. 12 (1939).
30

Farias v. The Executive Secretary, G.R. No. 147387, 10 December 2003; Abbas v. Commission on Elections, G.R. No. 89651, 10 November 1989, 179 SCRA 287.
31

Section 11 of PD 1146 provides for the qualifications to become entitled to retirement benefits: SEC. 11. Conditions for Old-Age Pension. (a) Old-age pension shall be paid to a member who: (1) has at least fifteen years of service; (2) is at least sixty years of age; and (3) is separated from the service. (b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at sixty-five years of age with at least fifteen years of service: Provided, That if he has less than fifteen years of service, he shall be allowed to continue in the service to complete the fifteen years.

32

The pertinent provisions of RA 8291 regarding survivorship benefits read: SEC. 20. Survivorship Benefits. - When a member or pensioner dies, the beneficiaries shall be entitled to survivorship benefits provided in Sections 21 and 22 hereunder subject to the conditions therein provided for. The survivorship pension shall consist of: (1) the basic survivorship pension which is fifty percent (50%) of the basic monthly pension; and (2) the dependent children's pension not exceeding fifty percent (50%) of the basic monthly pension. SEC. 21. Death of a Member. - (a) Upon the death of a member, the primary beneficiaries shall be entitled to: (1) survivorship pension: Provided, That the deceased: (i) was in the service at the time of his death; or

(ii) if separated from the service, has at least three (3) years of service at the time of his death and has paid thirty-six (36) monthly contributions within the five-year period immediately preceding his death; or has paid a total of at least one hundred eighty (180) monthly contributions prior to his death; or (2) the survivorship pension plus a cash payment equivalent to one hundred percent (100%) of his average monthly compensation for every year of service: Provided, That the deceased was in the service at the time of his death with at least three (3) years of service; or (3) a cash payment equivalent to one hundred percent (100%) of his average monthly compensation for each year of service he paid contributions, but not less than Twelve Thousand Pesos (P12,000.00): Provided, That the deceased has rendered at least three (3) years of service prior to his death but does not qualify for the benefits under item (1) or (2) of this paragraph. (b) The survivorship pension shall be paid as follows: (1) when the dependent spouse is the only survivor, he/she shall receive the basic survivorship pension for life or until he/she remarries; (2) when only dependent children are the survivors, they shall be entitled to the basic survivorship pension for as long as they are qualified, plus the dependent children's pension equivalent to ten percent (10%) of the basic monthly pension for every dependent child not exceeding five (5), counted from the youngest and without substitution; (3) when the survivors are the dependent spouse and the dependent children, the dependent spouse shall receive the basic survivorship pension for life or until he/she remarries, and the dependent children shall receive the dependent children's pension mentioned in the immediately preceding paragraph (2) hereof. (c) In the absence of primary beneficiaries, the secondary beneficiaries shall be entitled to: (1) the cash payment equivalent to one hundred percent (100%) of his average monthly compensation for each year of service he paid contributions, but not less than Twelve Thousand Pesos (P12,000.00): Provided, That the member is in the service at the time of his death and has at least three (3) years of service; or (2) in the absence of secondary beneficiaries, the benefits under this paragraph shall be paid to his legal heirs.

(d) For purposes of the survivorship benefits, legitimate children shall include legally adopted and legitimated children. SEC. 22. Death of a Pensioner. - Upon the death of an old-age pensioner or a member receiving the monthly income benefit for permanent disability, the qualified beneficiaries shall be entitled to the survivorship pension defined in Section 20 of this Act, subject to the provisions of paragraph (b) of Section 21 hereof. When the pensioner dies within the period covered by the lump sum, the survivorship pension shall be paid only after the expiration of the said period.
33

Section 10.4.1 of the Implementing Rule and Regulation of R.A. No. 8291 reads: Section 10.4 Allocation of the Survivorship Pension Among Beneficiaries. The survivorship pension shall be paid as follows: 10.4.1 When the dependent spouse is the only survivor, he/she shall receive the basic survivorship pension for life or until he/she remarries. For purposes of this section, the marriage of the surviving spouse immediately prior to the death of the member or pensioner shall be acceptable, unless it is proven that the marriage was solemnized solely for the purpose of receiving the benefit. (Emphasis supplied)

ARTICLE III, SECTION SECTION 2 RIGHT AGAINST UNREASONABLE ARREST, SEARCH AND SEIZURE Mayo 31, 2012 by foobarph in Constitutional Law. Warrantless Arrest, Search and Seizure The right of a man, together with his love-ones, is protected by the Bill of Rights under Article 3, Section 2 of the Philippine Constitution. It states that, 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 uponprobable 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. As a general rule, before a police officer can arrest or search a person, he must validly first secure a warrant of arrest or search warrant. Without it, any evidence that can be obtained by such shall become inadmissible evidence in court. Elements of a good evidence

o o o

It must be relevant It must be material

It must be competent Requisites for a valid warrant of arrest or search warrant

1. There should be probable cause 2. It must be personally determined by a judge 3. It should be examined under oath or affirmation of the complainant and the witness he may produce. 4. Place to be searched and the persons or things to be seized should be particular, not general. Only party affected may contest legality of seizure effected by search warrants.Officers of certain corporations, from which documents, papers and things were seized by means of search warrants, have no cause of action to assail the legality of the seizures because said corporations have personalities distinct and separate from those of said officers. The legality of a seizure can be contested only by the party whose rights have been impaired thereby. The objection to an unlawful search is purely personal and cannot be availed of by third parties. When illegally seized evidence is admissible.Officers of certain corporations cannot validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations since the right to object to their admission in evidence belongs exclusively to the corporations, to which the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity. Requisites for issuing search warrants.The Constitution provides that no warrant shall issue but upon probable cause, to be determined by the judge, and that the warrant shall particularly describe the things to be seized. General search warrants.Search warrants, issued upon applications stating that the natural and juridical persons therein named had committed a violation of Central Bank laws, tariff and customs laws, Tax Code and Revised Penal Code do not satisfy the constitutional requirements

because no specific offense had been alleged in said applications. It was impossible for the judges, who issued the warrants, to have found the existence of probable cause, which presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts or committed specific omissions in violation of a specific penal provision. Why general warrants are outlawed.General search warrants are outlawed because they 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. Provision of Revised Rules of Court.To prevent the issuance of general warrants, the Supreme Court amended the Old Rules of Court by providing in the Revised Rules of Court that no search warrant shall issue for more than one specific offense. Warrants not describing particularly the things to be seized.Search warrants authorizing the seizure of books of accounts and records showing all the business transactions of certain persons, regardless of whether the transactions were legal or illegal, contravene the explicit command of the Bill of Rights that the things to be seized should be particularly described and defeat its major objective of eliminating general warrants. [Stonehill vs. Diokno, 20 SCRA 383(1967)] Warrant-less Arrests 1. In flagrante delicto 2. Hot pursuit 3. Escapee Warrant-less Searches

1. Search incident to lawful arrest 1. Arrest precedes search 2. Consented Search 3. Plain-view search 4. Checkpoints 5. Administrative Searches

6. At airports

P h i l i p p i n eL a wC a s e s Friday, March 16, 2012 Burgos, Sr. vs. Chief of Staff, AFP, No. L-64261, 133 SCRA 800, December 26, 1984 Posted by Alchemy Business Center and Marketing Consultancy at 2:45 AM Labels: 133 SCRA 800, 1984, AFP, Burgos, December 26, No. L64261,Political Law, Sr. vs. Chief of Staff

Burgos, Sr. vs. Chief of Staff, AFP, No. L-64261, 133 SCRA 800, December 26, 1984 G.R. No. L-64261 December 26, 1984 JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC.,petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents. Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners. The Solicitor General for respondents.

ESCOLIN, J.: Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2]

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

view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...". Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months. Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5 Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus: Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided. The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential

Security Command, they were further encouraged to hope that the latter would yield the desired results. After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo] Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them. Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition. Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question. 1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This

assertion is based on that portion of Search Warrant No. 20- 82[b] which states: Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b]. In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8 3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized. Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. A search warrant may be issued for the search and seizure of the following personal property: [a] Property subject of the offense; [b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense. The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants. 4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom.10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982. It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides: SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13 In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case. Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: 1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969 3] A delivery truck with Plate No. NBS 524; 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang." In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security. As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and

sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus: The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana. On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises. Cendaa said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19 That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall

addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated: 2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and materials it uses.21 IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. Aquino, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, 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." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result in wiping "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." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof. The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following: Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement. The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence.

Teehankee, J., concur.

Separate Opinions ABAD SANTOS, J., concurring I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, 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." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].) Any search warrant is conducted in disregard of the points mentioned above will result in wiping "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." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof.

The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following: Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement. The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur. Footnotes 1 Petition, P. 44, Rollo. 2 Manifestation and Opposition, p. 75, Rollo. 3 Templo v. Dela Cruz, 60 SCRA 295. 4 463 Phil. 275. 5 Tijam v. Sibonghanoy, 23 SCRA 29. 6 Sec. 4, Rule 126, Rules of Court provides: Sec. 4. Examination of the Applicant. The municipal or city judge must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their deposition in

writing and attach them to the record, in addition to any affidavits presented to them. 7 The opening paragraph of Search Warrant No. 20- 82 [b] reads: "It appearing to the satisfaction of the undersigned after examination under oath of Maj. Alejandro M. Gutierrez and Lt. Pedro U. Tango, that there are good and sufficient reason to believe that Jose Burgos, Jr. Publisher-Editor of "WE FORUM" with office address at 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, has in his possession and control at said address the following; ... : 8 68 Am. Jur. 2d., 729. 9 61 Phil. 709. Annex "C", Petition, pp. 51-52, 10 Rollo. 11 Annex "B", Petition, pp. 53-54, Rollo. 12 Annex "C", Petition, p. 51, Rollo. 13 Annex "D", Petition, p. 54, Rollo. 14 Sec. 3, Art. IV, 1973 Constitution. 15 64 Phil. 33. 18 Sec. 9. Art. IV of the Constitution 19 Annex "K", Consolidated Reply, p. 175, Rollo. 20 Annex "L", Consolidated Reply, p. 178, Rollo. 21 Annex "M", Consolidated Reply, p. 179, Rollo.

BURGOS, SR. V. CHIEF OF STAFF, AFP [133 SCRA 800; G.R. NO. 64261; 26 DEC 1984] Tuesday, February 03, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: Petitioners assail the validity of 2 search warrants issued on December 7, 1982 by respondent Judge Cruz-Pano of the then Court of First Instance of Rizal, under which the premises known as No. 19,Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publishereditor of the "We Forum" newspaper, were seized. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Respondents contend that petitioners should have filed a motion to quash said warrants in the court that issued them before impugning the validity of the same before this Court. Respondents also assail the petition on ground of laches (Failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it). Respondents further state that since petitioner had already used as evidence some of the documents seized in a prior criminal case, he is stopped from challenging the validity of the search warrants.

Petitioners submit the following reasons to nullify the questioned warrants: 1. Respondent Judge failed to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the abovequoted constitutional provision as well as Sec. 4, Rule 126 of the Rules of Court. 2. The search warrants pinpointed only one address which would be the former abovementioned address.

3. Articles belonging to his co-petitioners were also seized although the warrants 4. were Real only directed properties against Jose were Burgos, Jr.

seized.

5. The application along with a joint affidavit, upon which the warrants were issued, from the Metrocom Intelligence and Security Group could not have provided sufficient basis for the finding of a probable cause upon which a warrant may be validly issued in accordance with Section 3, Article IV of the 1973 Constitution.

Respondents justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes sequestration of the property of any person engaged in subversive activities against the government in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense.

Issue: Whether or Not the 2 search warrants were validly issued and executed.

Held: In regard to the quashal of warrants that petitioners should have initially filed to the lower court, this Court takes cognizance of this petition in view of the seriousness and urgency of the constitutional Issue raised, not to mention the public interest generated by the search of the "We Forum" offices which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. With the contention pertaining to laches, the petitioners gave an explanation evidencing that they have exhausted other extra-judicial efforts to remedy the situation, negating the presumption that they have abandoned their right to the possession On the of the seized enumerated property. reasons:

1. This objection may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses.

2. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place.

3. Section 2, Rule 126, of the Rules of Court, does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. 4. Petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground, remain movable property susceptible to seizure under a search warrant.

5. The broad statements in the application and joint affidavit are mere conclusions of law and does not satisfy the requirements of probable cause. Deficient of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. In Alvarez v. Court of First Instance, this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The description of the articles sought to be seized under the search warrants in question are too general.

With regard to the respondents invoking PD 885, there is an absence of any implementing rules and regulations promulgated by the Minister of National Defense. Furthermore, President Marcos himself denies the request of military authorities to sequester the property seized from petitioners. The closure of the premises subjected to search and seizure is contrary to the freedom of the press as guaranteed in ourfundamental law. The search warrants are declared null and void.

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.:p 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: 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). 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: 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 uponprobable 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). 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). 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). 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. 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]); Castaares 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.

SO ORDERED. Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Footnotes * Penned by Judge Romeo J. Callejo. ** It reads: "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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

SOLIVEN VS. MAKASIAR [167 SCRA 393; G.R. NO. 82585; 14 NOV 1988] Tuesday, February 03, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: 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 ofthe existence of a prima facie case was still under review by the subsequently, by the President; and Secretary of Justice and, (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. 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'sfinding 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.

Issues: (1) Whether or Not petitioners were denied due process when informations for libel were filed against them although the finding ofthe existence of a prima facie case 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

Held: With respect to petitioner Beltran, the allegation of denial ofdue 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 What the Constitution underscores is the exclusive interpretation. 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 probable report and require the submission of supporting affidavits of cause. witnesses to aid him in arriving at a conclusion as to the existence of

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. 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. 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 andprohibition prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.