STAT CON CASES TO READ:

1. Re: Smoking in public places 613 SCRA 705 2. Sulpicio Lines, Inc. vs. Curso 615 SCRA 575

G.R. No. 157009

March 17, 2010

SULPICIO LINES, INC., Petitioner, vs. DOMINGO E. CURSO, LUCIA E. CURSO, MELECIO E. CURSO, SEGUNDO E. CURSO, VIRGILIO E. CURSO, DIOSDADA E. CURSO, and CECILIA E. CURSO, Respondents. DECISION BERSAMIN, J.: Are the surviving brothers and sisters of a passenger of a vessel that sinks during a voyage entitled to recover moral damages from the vessel owner as common carrier? This is the question presented in the appeal taken by the common carrier from the reversal by the Court of Appeals (CA) of the decision of the Regional Trial Court (RTC) dismissing the complaint for various damages filed by the surviving brothers and sisters of the late Dr. Cenon E. Curso upon a finding that force majeure had caused the sinking. The CA awarded moral and other damages to the surviving brothers and sisters. Antecedents On October 23, 1988, Dr. Curso boarded at the port of Manila the MV Doa Marilyn, an inter-island vessel owned and operated by petitioner Sulpicio Lines, Inc., bound for Tacloban City. Unfortunately, the MV Doa Marilyn sank in the afternoon of October 24, 1988 while at sea due to the inclement sea and weather conditions brought about by Typhoon Unsang. The body of Dr. Curso was not recovered, along with hundreds of other passengers of the ill-fated vessel. At the time of his death, Dr. Curso was 48 years old, and employed as a resident physician at the Naval District Hospital in Naval, Biliran. He had a basic monthly salary of P3,940.00, and would have retired from government service by December 20, 2004 at the age of 65. On January 21, 1993, the respondents, allegedly the surviving brothers and sisters of Dr. Curso, sued the petitioner in the RTC in Naval, Biliran to claim damages based on breach of contract of carriage by sea, averring that the petitioner had acted negligently in transporting Dr. Curso and the other passengers. They stated, among others, that their parents had predeceased Dr. Curso, who died single and without issue; and that, as such, they were Dr. Cursos surviving heirs and successors in interest entitled to recover moral and other damages.1 They prayed for judgment, as follows: (a) compensatory damages of P1,924,809.00; (b) moral damages of P100,000.00; (c) exemplary or corrective damages in the amount deemed proper and just; (d) expenses of litigation of at least P50,000.00; (e) attorneys fees of P50,000.00; and (f) costs of

suit. The petitioner denied liability, insisting that the sinking of the vessel was due to force majeure (i.e., Typhoon Unsang), which exempted a common carrier from liability. It averred that the MV Doa Marilyn was seaworthy in all respects, and was in fact cleared by the Philippine Coast Guard for the voyage; and that after the accident it conducted intensive search and rescue operations and extended assistance and aid to the victims and their families. Ruling of the RTC On July 28, 1995, the RTC dismissed the complaint upon its finding that the sinking of the vessel was due to force majeure. The RTC concluded that the officers of the MV Doa Marilyn had acted with the diligence required of a common carrier; that the sinking of the vessel and the death of its passengers, including Dr. Curso, could not have been avoided; that there was no basis to consider the MV Doa Marilyn not seaworthy at the time of the voyage; that the findings of the Special Board of Marine Inquiry (SBMI) constituted to investigate the disaster absolved the petitioner, its officers, and crew of any negligence and administrative liability; and that the respondents failed to prove their claim for damages. Ruling of the CA The respondents appealed to the CA, contending that the RTC erred: ( a) in considering itself barred from entertaining the case by the findings of fact of the SBMI in SBMI-ADM Case No. 08-88; ( b) in not holding that the petitioner was negligent and did not exercise the required diligence and care in conducting Dr. Curso to his destination; (c) in not finding that the MV Doa Marilyn was unseaworthy at the time of its sinking; and ( d) in not awarding damages to them.2 In its decision dated September 16, 2002,3 the CA held and disposed: Based on the events described by the appellees witness, the Court found inadequate proof to show that Sulpicio Lines, Inc., or its officers and crew, had exercised the required degree of diligence to acquit the appellee of liability. In the first place, the court finds inadequate explanation why the officers of the M.V. Doa Marilyn had not apprised themselves of the weather reports on the approach of typhoon "Unsang" which had the power of a signal no. 3 cyclone, bearing upon the general direction of the path of the M.V. Doa Marilyn. If the officers and crew of the Doa Marilyn had indeed been adequately monitoring the strength and direction of the typhoon, and had acted promptly and competently to avoid the same, then such a mishap would not have occurred. Furthermore, there was no account of the acts and decision of the crew of the illfated ship from 8:00 PM on October 23, 1988 when the Chief Mate left his post until 4:00 AM the next day when he resumed duty. It does not appear what occurred during that time, or what weather reports were received and acted upon by the ship captain. What happened during such time is important in determining what information about the typhoon was gathered and how the ship officers reached their decision to just change course, and not take shelter while a

strong typhoon was approaching. Furthermore, the Court doubts the fitness of the ship for the voyage, since at the first sign of bad weather, the ships hydraulic system failed and had to be repaired mid-voyage, making the vessel a virtual derelict amidst a raging storm at sea. It is part of the appellees extraordinary diligence as a common carrier to make sure that its ships can withstand the forces that bear upon them during a voyage, whether they be the ordinary stress of the sea during a calm voyage or the rage of a storm. The fact that the stud bolts in the ships hydraulic system gave way while the ship was at sea discredits the theory that the appellee exercised due diligence in maintaining the seaworthy condition of the M.V. Doa Marilyn. xxx.4 xxx Aside from these, the defendant must compensate the plaintiffs for moral damages that they suffered as a result of the negligence attending the loss of the M.V. Doa Marilyn. Plaintiffs, have established that they took great pains to recover, in vain, the body of their brother, at their own cost, while suffering great grief due to the loss of a loved one. Furthermore, Plaintiffs were unable to recover the body of their brother. Moral damages worth P100,000.00 is proper. WHEREFORE, premises considered, the appealed decision of the RTC of Naval, Biliran, Branch 16, rendered in Civil Case No. B-0851, is hereby SET ASIDE. In lieu thereof, judgment is hereby rendered, finding the defendant-appellee Sulpicio Lines, Inc, to have been negligent in transporting the deceased Cenon E. Curso who was on board the ill-fated M.V. Doa Marilyn, resulting in his untimely death. Defendant-appellee is hereby ordered to pay the plaintiffs heirs of Cenon E. Curso the following: (1) Death indemnity in the amount of P50,000.00; (2) Loss of Earning Capacity in the amount of P504,241.20; (3) Moral Damages in the amount of P100,000.00. (4) Costs of the suit.5 Hence, this appeal, in which the petitioner insists that the CA committed grievous errors in holding that the respondents were entitled to moral damages as the brothers and sisters of the late Dr. Curso; that the CA thereby disregarded Article 1764 and Article 2206 of the Civil Code, and the ruling in Receiver for North Negros Sugar Co., Inc. v. Ybaez ,6 whereby the Supreme Court disallowed the award of moral damages in favor of the brothers and sisters of a deceased passenger in an action upon breach of a contract of carriage.7 Issues The petitioner raises the following issues: ARE THE BROTHERS AND SISTERS OF A DECEASED PASSENGER IN A CASE OF BREACH OF CONTRACT OF CARRIAGE ENTITLED TO AN AWARD OF MORAL DAMAGES AGAINST THE CARRIER?

ASSUMING (THAT) THEY ARE ENTITLED TO CLAIM MORAL DAMAGES, SHOULD THE AWARD BE GRANTED OR GIVEN TO THE BROTHER OR SISTER NOTWITHSTANDING (THE) LACK OF EVIDENCE AS REGARDS HIS OR HER PERSONAL SUFFERING? Ruling The petition is meritorious. As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract, unless there is fraud or bad faith. 8 As an exception, moral damages may be awarded in case of breach of contract of carriage that results in the death of a passenger, 9 in accordance with Article 1764, in relation to Article 2206 (3), of the Civil Code, which provide: Article 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book, concerning Damages. Article 2206 shall also apply to the death of a passenger caused by the breach of contract by a common carrier. Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. The foregoing legal provisions set forth the persons entitled to moral damages. The omission from Article 2206 (3) of the brothers and sisters of the deceased passenger reveals the legislative intent to exclude them from the recovery of moral damages for mental anguish by reason of the death of the deceased. Inclusio unius est exclusio alterius.10 The solemn power and duty of the courts to interpret and apply the law do not include the power to correct the law by reading into it what is not written therein.11 Thus, the CA erred in awarding moral damages to the respondents. The petitioner has correctly relied on the holding in Receiver for North Negros Sugar Company, Inc. v. Ybaez,12 to the effect that in case of death caused by quasi-delict, the brother of the deceased was not entitled to the award of moral damages based on Article 2206 of the Civil Code.

Essentially, the purpose of moral damages is indemnity or reparation, that is, to enable the injured party to obtain the means, diversions, or amusements that will serve to alleviate the moral suffering he has undergone by reason of the tragic event. According to Villanueva v. Salvador,13 the conditions for awarding moral damages are: (a) there must be an injury, whether physical, mental, or psychological, clearly substantiated by the claimant; (b) there must be a culpable act or omission factually established; (c) the wrongful act or omission of the defendant must be the proximate cause of the injury sustained by the claimant; and (d) the award of damages is predicated on any of the cases stated in Article 2219 of the Civil Code. To be entitled to moral damages, the respondents must have a right based upon law. It is true that under Article 100314 of the Civil Code they succeeded to the entire estate of the late Dr. Curso in the absence of the latters descendants, ascendants, illegitimate children, and surviving spouse. However, they were not included among the persons entitled to recover moral damages, as enumerated in Article 2219 of the Civil Code, viz: Article 2219. Moral damages may be recovered in the following and analogous cases: (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. The parents of the female seduced, abducted, raped or abused referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.1avvphi1 Article 2219 circumscribes the instances in which moral damages may be awarded. The provision does not include succession in the collateral line as a source of the right to recover moral damages. The usage of the phrase analogous cases in the provision means simply that the situation must be held similar to those expressly enumerated in the law in question 15 following the ejusdem generis rule. Hence, Article 1003 of the Civil Code is not concerned with recovery of moral damages. In fine, moral damages may be recovered in an action upon breach of contract of

carriage only when: (a) where death of a passenger results, or ( b) it is proved that the carrier was guilty of fraud and bad faith, even if death does not result. 16 Article 2206 of the Civil Code entitles the descendants, ascendants, illegitimate children, and surviving spouse of the deceased passenger to demand moral damages for mental anguish by reason of the death of the deceased.17 WHEREFORE, the petition for review on certiorari is granted, and the award made to the respondents in the decision dated September 16, 2002 of the Court of Appeals of moral damages amounting to P100,000.00 is deleted and set aside. SO ORDERED.

3. Leviste vs. CA 615 SCRA 619

G.R. No. 189122

March 17, 2010

JOSE ANTONIO LEVISTE, Petitioner, vs. THE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. DECISION CORONA, J.: Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before any court as may be required, 1 is the answer of the criminal justice system to a vexing question: what is to be done with the accused, whose guilt has not yet been proven, in the "dubious interval," often years long, between arrest and final adjudication? 2 Bail acts as a reconciling mechanism to accommodate both the accuseds interest in pretrial liberty and societys interest in assuring the accuseds presence at trial.3 Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the accused who has been sentenced to prison must typically begin serving time immediately unless, on application, he is admitted to bail.4 An accused not released on bail is incarcerated before an appellate court confirms that his conviction is legal and proper. An erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed.5 Even if the conviction is subsequently affirmed, however, the accuseds interest in bail pending appeal includes freedom pending judicial review, opportunity to efficiently prepare his case and avoidance of potential hardships of prison. 6 On the other hand, society has a compelling interest in protecting itself by swiftly incarcerating an individual who is found guilty beyond reasonable doubt of a crime serious enough to warrant prison time.7 Other recognized societal interests in the denial of bail pending appeal include the prevention of the accuseds flight from court custody, the protection of the community from potential danger and the avoidance of delay in punishment.8 Under what circumstances an accused may obtain bail pending appeal, then, is a delicate balance between the interests of society and those of

the accused.9 Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to those convicted by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. In the exercise of that discretion, the proper courts are to be guided by the fundamental principle that the allowance of bail pending appeal should be exercised not with laxity but with grave caution and only for strong reasons, considering that the accused has been in fact convicted by the trial court.10 The Facts Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by the Regional Trial Court of Makati City for the lesser crime of homicide and sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum.11 He appealed his conviction to the Court of Appeals. 12 Pending appeal, he filed an urgent application for admission to bail pending appeal, citing his advanced age and health condition, and claiming the absence of any risk or possibility of flight on his part. The Court of Appeals denied petitioners application for bail. 13 It invoked the bedrock principle in the matter of bail pending appeal, that the discretion to extend bail during the course of appeal should be exercised "with grave caution and only for strong reasons." Citing well-established jurisprudence, it ruled that bail is not a sick pass for an ailing or aged detainee or a prisoner needing medical care outside the prison facility. It found that petitioner failed to show that he suffers from ailment of such gravity that his continued confinement during trial will permanently impair his health or put his life in danger. x x x Notably, the physical condition of [petitioner] does not prevent him from seeking medical attention while confined in prison, though he clearly preferred to be attended by his personal physician.14 For purposes of determining whether petitioners application for bail could be allowed pending appeal, the Court of Appeals also considered the fact of petitioners conviction. It made a preliminary evaluation of petitioners case and made a prima facie determination that there was no reason substantial enough to overturn the evidence of petitioners guilt. Petitioners motion for reconsideration was denied.15 Petitioner now questions as grave abuse of discretion the denial of his application for bail, considering that none of the conditions justifying denial of bail under the third paragraph of Section 5, Rule 114 of the Rules of Court was present. Petitioners theory is that, where the penalty imposed by the trial court is more than six years but not more than 20 years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted to an appellant pending appeal. The Issue

The question presented to the Court is this: in an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court? Section 5, Rule 114 of the Rules of Court provides: Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (emphasis supplied) Petitioner claims that, in the absence of any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court, an application for bail by an appellant sentenced by the Regional Trial Court to a penalty of more than six years imprisonment should automatically be granted. Petitioners stance is contrary to fundamental considerations of procedural and substantive rules.

Basic Procedural Concerns Forbid Grant of Petition Petitioner filed this special civil action for certiorari under Rule 65 of the Rules of Court to assail the denial by the Court of Appeals of his urgent application for admission to bail pending appeal. While the said remedy may be resorted to challenge an interlocutory order, such remedy is proper only where the interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.16 Other than the sweeping averment that "[t]he Court of Appeals committed grave abuse of discretion in denying petitioners application for bail pending appeal despite the fact that none of the conditions to justify the denial thereof under Rule 114, Section 5 [is] present, much less proven by the prosecution," 17 however, petitioner actually failed to establish that the Court of Appeals indeed acted with grave abuse of discretion. He simply relies on his claim that the Court of Appeals should have granted bail in view of the absence of any of the circumstances enumerated in the third paragraph of Section 5, Rule 114 of the Rules of Court. Furthermore, petitioner asserts that the Court of Appeals committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence that he committed a capital offense was strong. We disagree. It cannot be said that the Court of Appeals issued the assailed resolution without or in excess of its jurisdiction. One, pending appeal of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is expressly declared to be discretionary. Two, the discretion to allow or disallow bail pending appeal in a case such as this where the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable is exclusively lodged by the rules with the appellate court. Thus, the Court of Appeals had jurisdiction to hear and resolve petitioners urgent application for admission to bail pending appeal. Neither can it be correctly claimed that the Court of Appeals committed grave abuse of discretion when it denied petitioners application for bail pending appeal. Grave abuse of discretion is not simply an error in judgment but it is such a capricious and whimsical exercise of judgment which is tantamount to lack of jurisdiction.18 Ordinary abuse of discretion is insufficient. The abuse of discretion must be grave, that is, the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility. 19 It must be so patent and gross as to amount to evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of the law. In other words, for a petition for certiorari to prosper, there must be a clear showing of caprice and arbitrariness in the exercise of discretion.20 Petitioner never alleged that, in denying his application for bail pending appeal, the Court of Appeals exercised its judgment capriciously and whimsically. No capriciousness or arbitrariness in the exercise of discretion was ever imputed to the appellate court. Nor could any such implication or imputation be inferred. As observed earlier, the Court of Appeals exercised grave caution in the exercise of

its discretion. The denial of petitioners application for bail pending appeal was not unreasonable but was the result of a thorough assessment of petitioners claim of ill health. By making a preliminary appraisal of the merits of the case for the purpose of granting bail, the court also determined whether the appeal was frivolous or not, or whether it raised a substantial question. The appellate court did not exercise its discretion in a careless manner but followed doctrinal rulings of this Court. At best, petitioner only points out the Court of Appeals erroneous application and interpretation of Section 5, Rule 114 of the Rules of Court. However, the extraordinary writ of certiorari will not be issued to cure errors in proceedings or erroneous conclusions of law or fact.21 In this connection, Lee v. People22 is apropos: Certiorari may not be availed of where it is not shown that the respondent court lacked or exceeded its jurisdiction over the case, even if its findings are not correct. Its questioned acts would at most constitute errors of law and not abuse of discretion correctible by certiorari. In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the courts findings and conclusions. An interlocutory order may be assailed by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as regards interlocutory orders. To tolerate the practice of allowing interlocutory orders to be the subject of review by certiorari will not only delay the administration of justice but will also unduly burden the courts. 23 (emphasis supplied) Wording of Third Paragraph of Section 5, Rule 114 Contradicts Petitioners Interpretation The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding six years. The first scenario deals with the circumstances enumerated in the said paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or commission of the crime aggravated by the circumstance of reiteration; previous escape from legal confinement, evasion of sentence or violation of the conditions of his bail without a valid justification; commission of the offense while under probation, parole or conditional pardon; circumstances indicating the probability of flight if released on bail; undue risk of committing another crime during the pendency of the appeal; or other similar circumstances) not present. The second scenario contemplates the existence of at least one of the said circumstances. The implications of this distinction are discussed with erudition and clarity in the commentary of retired Supreme Court Justice Florenz D. Regalado, an authority in remedial law: Under the present revised Rule 114, the availability of bail to an accused may be summarized in the following rules: xxx xxx xxx

e. After conviction by the Regional Trial Court wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed, and not one of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, bail is a matter of discretion (Sec. 5); f. After conviction by the Regional Trial Court imprisonment exceeding 6 years but not more than circumstances stated in Sec. 5 or any other similar and proved, no bail shall be granted by said (emphasis supplied) imposing a penalty of 20 years, and any of the circumstance is present court (Sec. 5); x x x 24

Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law, is of the same thinking: Bail is either a matter of right or of discretion. It is a matter of right when the offense charged is not punishable by death, reclusion perpetua or life imprisonment. On the other hand, upon conviction by the Regional Trial Court of an offense not punishable death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion. Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years then bail is a matter of discretion, except when any of the enumerated circumstances under paragraph 3 of Section 5, Rule 114 is present then bail shall be denied .25 (emphasis supplied) In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bail-negating 26 circumstances in the third paragraph of Section 5, Rule 114 are absent. In other words, the appellate courts denial of bail pending appeal where none of the said circumstances exists does not, by and of itself, constitute abuse of discretion. On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Conversely, if the appellate court grants bail pending appeal, grave abuse of discretion will thereby be committed. Given these two distinct scenarios, therefore, any application for bail pending appeal should be viewed from the perspective of two stages: (1) the determination of discretion stage, where the appellate court must determine whether any of the circumstances in the third paragraph of Section 5, Rule 114 is present; this will establish whether or not the appellate court will exercise sound discretion or stringent discretion in resolving the application for bail pending appeal and (2) the exercise of discretion stage where, assuming the appellants case falls within the first scenario allowing the exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in the third paragraph of Section 5, Rule 114, including the demands of equity and justice;27 on the basis thereof, it may either allow or

disallow bail. On the other hand, if the appellants case falls within the second scenario, the appellate courts stringent discretion requires that the exercise thereof be primarily focused on the determination of the proof of the presence of any of the circumstances that are prejudicial to the allowance of bail. This is so because the existence of any of those circumstances is by itself sufficient to deny or revoke bail. Nonetheless, a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less stringent sound discretion approach. Petitioner disregards the fine yet substantial distinction between the two different situations that are governed by the third paragraph of Section 5, Rule 114. Instead, petitioner insists on a simplistic treatment that unduly dilutes the import of the said provision and trivializes the established policy governing the grant of bail pending appeal. In particular, a careful reading of petitioners arguments reveals that it interprets the third paragraph of Section 5, Rule 114 to cover all situations where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years. For petitioner, in such a situation, the grant of bail pending appeal is always subject to limited discretion, that is, one restricted to the determination of whether any of the five bail-negating circumstances exists. The implication of this position is that, if any such circumstance is present, then bail will be denied. Otherwise, bail will be granted pending appeal. Petitioners theory therefore reduces the appellate court into a mere fact-finding body whose authority is limited to determining whether any of the five circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This unduly constricts its "discretion" into merely filling out the checklist of circumstances in the third paragraph of Section 5, Rule 114 in all instances where the penalty imposed by the Regional Trial Court on the appellant is imprisonment exceeding six years. In short, petitioners interpretation severely curbs the discretion of the appellate court by requiring it to determine a singular factual issue whether any of the five bail-negating circumstances is present. However, judicial discretion has been defined as "choice." 28 Choice occurs where, between "two alternatives or among a possibly infinite number (of options)," there is "more than one possible outcome, with the selection of the outcome left to the decision maker."29 On the other hand, the establishment of a clearly defined rule of action is the end of discretion. 30 Thus, by severely clipping the appellate courts discretion and relegating that tribunal to a mere factfinding body in applications for bail pending appeal in all instances where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years, petitioners theory effectively renders nugatory the provision that " upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary." The judicial discretion granted to the proper court (the Court of Appeals in this case) to rule on applications for bail pending appeal must necessarily involve the exercise of judgment on the part of the court. The court must be allowed

reasonable latitude to express its own view of the case, its appreciation of the facts and its understanding of the applicable law on the matter. 31 In view of the grave caution required of it, the court should consider whether or not, under all circumstances, the accused will be present to abide by his punishment if his conviction is affirmed.32 It should also give due regard to any other pertinent matters beyond the record of the particular case, such as the record, character and reputation of the applicant, 33 among other things. More importantly, the discretion to determine allowance or disallowance of bail pending appeal necessarily includes, at the very least, an initial determination that the appeal is not frivolous but raises a substantial question of law or fact which must be determined by the appellate court.34 In other words, a threshold requirement for the grant of bail is a showing that the appeal is not pro forma and merely intended for delay but presents a fairly debatable issue. 35 This must be so; otherwise, the appellate courts will be deluged with frivolous and time-wasting appeals made for the purpose of taking advantage of a lenient attitude on bail pending appeal. Even more significantly, this comports with the very strong presumption on appeal that the lower courts exercise of discretionary power was sound,36 specially since the rules on criminal procedure require that no judgment shall be reversed or modified by the Court of Appeals except for substantial error.37 Moreover, to limit the bail-negating circumstances to the five situations mentioned in the third paragraph of Section 5, Rule 114 is wrong. By restricting the bail-negating circumstances to those expressly mentioned, petitioner applies the expressio unius est exclusio alterius38 rule in statutory construction. However, the very language of the third paragraph of Section 5, Rule 114 contradicts the idea that the enumeration of the five situations therein was meant to be exclusive. The provision categorically refers to "the following or other similar circumstances." Hence, under the rules, similarly relevant situations other than those listed in the third paragraph of Section 5, Rule 114 may be considered in the allowance, denial or revocation of bail pending appeal. Finally, laws and rules should not be interpreted in such a way that leads to unreasonable or senseless consequences. An absurd situation will result from adopting petitioners interpretation that, where the penalty imposed by the trial court is imprisonment exceeding six years, bail ought to be granted if none of the listed bail-negating circumstances exists. Allowance of bail pending appeal in cases where the penalty imposed is more than six years of imprisonment will be more lenient than in cases where the penalty imposed does not exceed six years. While denial or revocation of bail in cases where the penalty imposed is more than six years imprisonment must be made only if any of the five bail-negating conditions is present, bail pending appeal in cases where the penalty imposed does not exceed six years imprisonment may be denied even without those conditions. Is it reasonable and in conformity with the dictates of justice that bail pending appeal be more accessible to those convicted of serious offenses, compared to those convicted of less serious crimes? Petitioners Theory Deviates from History And Evolution of Rule on Bail

Pending Appeal Petitioners interpretation deviates from, even radically alters, the history and evolution of the provisions on bail pending appeal. The relevant original provisions on bail were provided under Sections 3 to 6, Rule 110 of the 1940 Rules of Criminal Procedure: Sec. 3. Offenses less than capital before conviction by the Court of First Instance. After judgment by a municipal judge and before conviction by the Court of First Instance, the defendant shall be admitted to bail as of right. Sec. 4. Non-capital offenses after conviction by the Court of First Instance. After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court. Sec. 5. Capital offense defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. Sec. 6. Capital offense not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong. The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the 1964 Rules of Criminal Procedure and then of the 1985 Rules of Criminal Procedure. They were modified in 1988 to read as follows: Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Sec. 4. Capital offense, defined. A capital offense, as the term is used in this Rules, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. (emphasis supplied) The significance of the above changes was clarified in Administrative Circular No. 2-92 dated January 20, 1992 as follows: The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides: Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Pursuant to the aforecited provision, an accused who is charged with a capital

offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong. Hence, for the guidelines of the bench and bar with respect to future as well as pending cases before the trial courts, this Court en banc lays down the following policies concerning the effectivity of the bail of the accused, to wit: 1) When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application for bail is punishable by a penalty lower than reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended; 2) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied; 3) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal. As to criminal cases covered under the third rule abovecited, which are now pending appeal before his Court where the accused is still on provisional liberty, the following rules are laid down: 1) This Court shall order the bondsman to surrender the accused within ten (10) days from notice to the court of origin. The bondsman thereupon, shall inform this Court of the fact of surrender, after which, the cancellation of the bond shall be ordered by this Court; 2) The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall remain under confinement pending resolution of his appeal; 3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall be deemed to have jumped his bail. (emphasis supplied) Amendments were further introduced in Administrative Circular No. 12-94 dated August 16, 1994 which brought about important changes in the said rules as

follows: SECTION 4. Bail, a matter of right. All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of this Rule. (3a) SECTION 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. (n) SECTION 6. Capital offense, defined. A capital offense, as the term is used in these Rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, maybe punished with death. (4) SECTION 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. (emphasis supplied) The above amendments of Administrative Circular No. 12-94 to Rule 114 were thereafter amended by A.M. No. 00-5-03-SC to read as they do now.

The development over time of these rules reveals an orientation towards a more restrictive approach to bail pending appeal. It indicates a faithful adherence to the bedrock principle, that is, bail pending appeal should be allowed not with leniency but with grave caution and only for strong reasons. The earliest rules on the matter made all grants of bail after conviction for a noncapital offense by the Court of First Instance (predecessor of the Regional Trial Court) discretionary. The 1988 amendments made applications for bail pending appeal favorable to the appellant-applicant. Bail before final conviction in trial courts for non-capital offenses or offenses not punishable by reclusion perpetua was a matter of right, meaning, admission to bail was a matter of right at any stage of the action where the charge was not for a capital offense or was not punished by reclusion perpetua.39 The amendments introduced by Administrative Circular No. 12-94 made bail pending appeal (of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment) discretionary. Thus, Administrative Circular No. 12-94 laid down more stringent rules on the matter of post-conviction grant of bail. A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly identifying which court has authority to act on applications for bail pending appeal under certain conditions and in particular situations. More importantly, it reiterated the "tough on bail pending appeal" configuration of Administrative Circular No. 12-94. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure which entitled the accused to bail as a matter of right before final conviction.40 Under the present rule, bail is a matter of discretion upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. Indeed, pursuant to the "tough on bail pending appeal" policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal such that those circumstances are deemed to be as grave as conviction by the trial court for an offense punishable by death, reclusion perpetua or life imprisonment where bail is prohibited. Now, what is more in consonance with a stringent standards approach to bail pending appeal? What is more in conformity with an ex abundante cautelam view of bail pending appeal? Is it a rule which favors the automatic grant of bail in the absence of any of the circumstances under the third paragraph of Section 5, Rule 114? Or is it a rule that authorizes the denial of bail after due consideration of all relevant circumstances, even if none of the circumstances under the third paragraph of Section 5, Rule 114 is present? The present inclination of the rules on criminal procedure to frown on bail pending appeal parallels the approach adopted in the United States where our original constitutional and procedural provisions on bail emanated. 41 While this is of course not to be followed blindly, it nonetheless shows that our treatment of bail pending appeal is no different from that in other democratic societies. In our jurisdiction, the trend towards a strict attitude towards the allowance of bail pending appeal is anchored on the principle that judicial discretion particularly with respect to extending bail should be exercised not with laxity

but with caution and only for strong reasons.42 In fact, it has even been pointed out that "grave caution that must attend the exercise of judicial discretion in granting bail to a convicted accused is best illustrated and exemplified in Administrative Circular No. 12-94 amending Rule 114, Section 5."43 Furthermore, this Court has been guided by the following: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.44 (emphasis supplied) As a matter of fact, endorsing the reasoning quoted above and relying thereon, the Court declared in Yap v. Court of Appeals 45 (promulgated in 2001 when the present rules were already effective), that denial of bail pending appeal is "a matter of wise discretion." A Final Word Section 13, Article II of the Constitution provides: SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. x x x (emphasis supplied)1avvphi1 After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends.46 From then on, the grant of bail is subject to judicial discretion. At the risk of being repetitious, such discretion must be exercised with grave caution and only for strong reasons. Considering that the accused was in fact convicted by the trial court, allowance of bail pending appeal should be guided by a stringent-standards approach. This judicial disposition finds strong support in the history and evolution of the rules on bail and the language of Section 5, Rule 114 of the Rules of Court. It is likewise consistent with the trial courts initial determination that the accused should be in prison. Furthermore, letting the accused out on bail despite his conviction may destroy the deterrent effect of our criminal laws. This is especially germane to bail pending appeal because long delays often separate sentencing in the trial court and appellate review. In addition, at the postconviction stage, the accused faces a certain prison sentence and thus may be more likely to flee regardless of bail bonds or other release conditions. Finally, permitting bail too freely in spite of conviction invites frivolous and time-wasting appeals which will make a mockery of our criminal justice system and court processes. WHEREFORE, the petition is hereby DISMISSED.

The Court of Appeals is hereby directed to resolve and decide, on the merits, the appeal of petitioner Jose Antonio Leviste docketed as CA-G.R. CR No. 32159, with dispatch. Costs against petitioner. SO ORDERED.
4. De Castro vs. JBC 615 SCRA 666

G.R. No. 191420 PHILIPPINE BAR ASSOCIATION, INC., Petitioner, vs. JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents. DECISION BERSAMIN, J.: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term , except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition under Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC? Precs of the Consolidated Cases Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 1910021 and G.R. No. 1911492 as special civil actions for certiorari and mandamus, praying that the JBC be compelled to submit to the incumbent President the list of at least three nominees for the position of the next Chief Justice. In G.R. No. 191032,3 Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting its search, selection and nomination proceedings for the position of Chief Justice. In G.R. No. 191057, a special civil action for mandamus,4 the Philippine Constitution Association (PHILCONSA) wants the JBC to submit its list of

nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department. In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary. In G.R. No. 191342,6 which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII. All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any Presidents most important appointment. A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),7 by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed. In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries one side holds that the incumbent President is prohibited from making appointments within two months immediately before the coming presidential elections and until the end of her term of office as President on June 30, 2010, while the other insists that the prohibition applies only to appointments to executive positions that may influence the election and, anyway, paramount national interest justifies the appointment of a Chief Justice during the election ban has impelled the JBC to defer the decision to whom to send its list of at least three nominees, whether to the incumbent President or to her successor.8 He opines that the JBC is thereby arrogating unto itself "the judicial function that is not conferred upon it by the Constitution," which has limited it to the task of recommending appointees to the Judiciary, but has not empowered it to "finally resolve constitutional questions, which is the power vested only in the Supreme Court under the Constitution." As such, he contends that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the President; and that a "final and definitive resolution of the constitutional questions raised above would diffuse (sic) the tension in the legal community that would go a long way to keep and maintain stability in the judiciary and the political system."9 In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or excess of its jurisdiction when it

resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the Supreme Court itself, the Presidents authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.10 For its part, PHILCONSA observes in its petition in G.R. No. 191057 that "unorthodox and exceptional circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution" have bred "a frenzied inflammatory legal debate on the constitutional provisions mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people," thereby fashioning "transcendental questions or issues affecting the JBCs proper exercise of its "principal function of recommending appointees to the Judiciary" by submitting only to the President (not to the next President) "a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy" from which the members of the Supreme Court and judges of the lower courts may be appointed."11 PHILCONSA further believes and submits that now is the time to revisit and review Valenzuela, the "strange and exotic Decision of the Court en banc."12 Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC "to immediately transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution" in the event that the Court resolves that the President can appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution.13 The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the "JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the position," and "is perilously near completing the nomination process and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010," which "only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight appointments."14 Antecedents These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that "vacancy shall be filled within ninety days from the occurrence thereof" from a "list of at least three nominees prepared by the Judicial and Bar Council for every vacancy."

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,15 which reads: The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno. It will publish the opening of the position for applications recommendations; deliberate on the list of candidates; publish names of candidates; accept comments on or opposition to applications; conduct public interviews of candidates; and prepare shortlist of candidates. or the the the

As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter. 18 January 2010. (sgd.) MA. LUISA D. VILLARAMA Clerk of Court & Ex-Officio Secretary Judicial and Bar Council As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement dated January 20, 2010,16 viz: The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO. Applications or recommendations for this position must be submitted not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx: The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.17 Conformably with its existing practice, the JBC "automatically considered" for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and

January 25, 2010, respectively.18 Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales. 19 Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the JBC on February 8, 2010).20 The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).21 In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.22 Issues Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno. The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter "to avoid any possible polemics concerning the matter," but he opines that the polemics leading to Valenzuela "would be miniscule [sic] compared to the "polemics" that have now erupted in regard to the current controversy," and that unless "put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired."23

Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions. G.R. No. 191002 a. Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period? b. Does the incumbent President have the power and authority to appoint during the election ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010? G.R. No. 191032 a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc? G.R. No. 191057 a. Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only to positions in the Executive Department? b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition? c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010? A. M. No. 10-2-5-SC a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9, Article VIII of the Constitution? b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010? G.R. No. 191149 a. Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-Arroyo? G.R. No. 191342 a. Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term?

b. Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBC's illegal composition allowing each member from the Senate and the House of Representatives to have one vote each? On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342. On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of candidates, "including the interview of the constitutional experts, as may be needed."24 It stated:25 Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments "two (2) months immediately before the next presidential elections and up to the end of his term" and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines. 12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter. On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010. The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBC's function to recommend is a "continuing process," which does not begin with each vacancy or end with each nomination, because the goal is "to submit the list of nominees to Malacaang on the very day the vacancy arises";26 the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno;27 (c) petitioner Soriano's theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase "members of the Supreme Court" found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; 28 (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President; 29 and (e) a writ of mandamus

cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBC's determination of who it nominates to the President is an exercise of a discretionary duty.30 The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; 31 that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight appointments, or its effects on such period, or vice versa; 32 that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President's power to appoint members of the Supreme Court to ensure its independence from "political vicissitudes" and its "insulation from political pressures,"33 such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice. The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there might be "the imperative need for an appointment during the period of the ban," like when the membership of the Supreme Court should be "so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be divided"; 34 and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition.35 Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is "quite expected"; 36 (b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President and, as such, has "the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC)"; 37 (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice Puno; 38 and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the

JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate.39 On March 9, 2010, the Court admitted the following comments/oppositions-inintervention, to wit: (a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);40 (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim); (c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan); (d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of People's Lawyers (NUPL); (e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano); (f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur); (g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser); (h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.); (i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and (j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena KasilagVillanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP). Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castro's petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from

making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition. Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castro's fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political situation. ice is imperative for the stability of the judicial system and the political situation in the country when the election-related questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition. Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads, officials,

and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010. Intervenor Boiser adds that De Castro's prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy. All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void. Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments. Intervenor WTLOP further posits that petitioner Soriano's contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term "members" was interpreted in Vargas v. Rillaroza (G.R. No. L1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSA's prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSA's petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired. Oppositor IBP Davao del Sur opines that the JBC - because it is neither a judicial nor a quasi-judicial body - has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution;

and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception. Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBC's act of nominating appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law. The main question presented in all the filings herein - because it involves two seemingly conflicting provisions of the Constitution - imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the everpresent need, first, to safeguard the independence, reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing President's power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary. Thus, we resolve. Ruling of the Court Locus Standi of Petitioners The preliminary issue to be settled is whether or not the petitioners have locus standi. Black defines locus standi as "a right of appearance in a court of justice on a given question."41 In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:42 The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." 43 Accordingly, it has been held that the interest of a person assailing the

constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.44 It is true that as early as in 1937, in People v. Vera,45 the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was followed in Custodio v. President of the Senate,46 Manila Race Horse Trainers' Association v. De la Fuente,47 Anti-Chinese League of the Philippines v. Felix, 48 and Pascual v. Secretary of Public Works.49 Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,50 the Court liberalized the approach when the cases had "transcendental importance." Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.51 In the 1975 decision in Aquino v. Commission on Elections,52 this Court decided to resolve the issues raised by the petition due to their "far-reaching implications," even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.53 However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right. Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,54 the Court aptly explains why: Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in Beauchamp v. Silk,55 where it was held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the former, the plaintiff is affected by

the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:56 "In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied ." With respect to taxpayer's suits, Terr v. Jordan57 held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."58 Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the continuing proceedings in the JBC, which involve "unnecessary, if not, illegal disbursement of public funds."59 PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.60 In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines. The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to the President, for "[a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with regard to respondent JBC's function in submitting the list of nominees is well within the concern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution." They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision and authority over them and other members of the legal profession.61 The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi. The issues before us are of transcendental importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of one's personal interest in life, because they

concern that great doubt about the authority of the incumbent President to appoint not only the successor of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial judges throughout the country. In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.62 Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc., 63 we pointed out: "Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest." But even if, strictly speaking, the petitioners "are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised."64 Justiciability Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication, considering that although the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President. Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review. Intervenors Corvera and Lim separately opine that De Castro's petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review. Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature. Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions

and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are "matters of paramount and transcendental importance to the bench, bar and general public"; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should "rule for the guidance of" the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy. We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the "interview of constitutional experts, as may be needed." A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositorsintervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy. The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary

position that the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the short list must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle - with finality - the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process. We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues. 65 Herein, the facts are not in doubt, for only legal issues remain. Substantive Merits I Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary Two constitutional provisions are seemingly in conflict. The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary. The Court agrees with the submission. First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention

and manifest their vision of what the Constitution should contain. The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech: We have in the political part of this Constitution opted for the separation of powers in government because we believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments.66 As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article. Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President's or Acting President's term does not refer to the Members of the Supreme Court. Although Valenzuela67 came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail. Relevantly, Valenzuela adverted to the intent of the framers in the genesis of

Section 4 (1), Article VIII, viz: V. Intent of the Constitutional Commission The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy "must be filled within two months from the date that the vacancy occurs." His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court's membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence. In this connection, it may be pointed out that that instruction that any "vacancy shall be filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that "a President or Acting President shall not make appointments" The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a "uniform rule" for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power "two months immediately before the next presidential elections up to the end of his term" - was approved without discussion.68 However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, "a command [to the President] to fill up any vacancy therein within 90 days from its occurrence," which even Valenzuela conceded.69 The exchanges during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President,

viz: MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11. MR. CONCEPCION. Yes. MR. DE CASTRO. And the second sentence of this subsection reads: "Any vacancy shall be filled within ninety days from the occurrence thereof." MR. CONCEPCION. That is right. MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy? MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.70 Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating to impose a duty that may be enforced 71 - should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution. The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was "couched in stronger negative language." Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commission's deliberations on Section 4 (1), Article VIII. How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:72 xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled. Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the lawmakers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of

a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rule's application, largely because of the principle of implied repeal. In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.73 Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false premises have been exposed. 74 It will not do to merely distinguish Valenzuela from these cases, for the result to be reached herein is entirely incompatible with what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable. We reverse Valenzuela. Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary. There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo. 75 In fact, in Valenzuela, the Court so observed, stating that: xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.: xxx The second type of appointments prohibited by Section 15, Article VII consists of the so-called "midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a "caretaker" administrator whose duty was to "prepare for the orderly transfer of authority to the incoming President." Said the Court: "The filling up of vacancies in important positions, if few, and so spaced as to

afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments." As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are "few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications," can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only "midnight" appointments those made obviously for partisan reasons as shown by their number and the time of their making - but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. On the other hand, the exception in the same Section 15 of Article VII - allowing appointments to be made during the period of the ban therein provided - is much narrower than that recognized in Aytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Court's view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.76 Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste

and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President or for partisanship,77 the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBC's prior processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on "the law of the statute," i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.78 Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process was absent from the Aytona midnight appointment. Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the "constitutionality of xxx appointments" to the Court of Appeals in light of the forthcoming presidential elections. He assured that "on the basis of the (Constitutional) Commission's records, the election ban had no application to appointments to the Court of Appeals." 79 This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.80 The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the President's power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado. Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President. Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President, 81 and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, because temporary or acting appointments can only undermine

the independence of the Judiciary due to their being revocable at will. 82 The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed only by impeachment. Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary.83 Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context , i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.84 It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof. Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010. Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining. The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Puno's retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment. Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity. In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts. Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President - any President - to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. Sec. 9, Article VIII says: xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation. xxx The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC. Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice? The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile's statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list. II The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor. Section 12 of the Judiciary Act of 1948 states: Section 12. Vacancy in Office of Chief Justice. - In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice. The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed. Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now. We cannot agree with the posture. A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution. For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected. The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become

the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President. Historically, under the present Constitution, there has been no wide gap between the retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows: 1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day; 2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day; 3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991; 4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998; 5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and 6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.85 III Writ of mandamus does not lie against the JBC May the JBC be compelled to submit the list of nominees to the President? Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. 86 It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.87 For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any

other plain, speedy and adequate remedy in the ordinary course of law. Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every vacancy in the Judiciary: Section 8. xxx (5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy. Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment. The duty of the JBC to submit a list of nominees before the start of the President's mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty.88 For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President. The distinction between a ministerial act and a discretionary one has been delineated in the following manner: The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own

judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment .89 Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno. IV Writ of prohibition does not lie against the JBC In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, Soriano's petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit. On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners' actual interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standi on that issue. WHEREFORE, the Court: 1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature; 2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and 3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council: (a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010; (b) To prepare the short list of nominees for the position of Chief Justice; (c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and (d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short

list of nominees corresponding thereto in accordance with this decision. SO ORDERED.

5. Orceo vs. COMELEC 616 SCRA 684

G.R. No. 190779

March 26, 2010

ATTY. REYNANTE B. ORCEO, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. DECISION PERALTA, J.: This is a petition for certiorari 1 questioning the validity of Resolution No. 8714 insofar as it provides that the term "firearm" includes airsoft guns and their replicas/imitations, which results in their coverage by the gun ban during the election period this year. Resolution No. 8714 is entitled Rules and Regulations on the: (1) Bearing, Carrying or Transporting of Firearms or other Deadly Weapons; and (2) Employment, Availment or Engagement of the Services of Security Personnel or Bodyguards, During the Election Period for the May 10, 2010 National and Local Elections. The Resolution was promulgated by the Commission on Elections (COMELEC) on December 16, 2009, and took effect on December 25, 2009. Resolution No. 8714 contains the implementing rules and regulations of Sec. 32 (Who May Bear Firearms) and Section 33 (Security Personnel and Bodyguards) of Republic Act (R.A.) No. 7166, entitled An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes. Section 1 of Resolution No. 8714 prohibits an unauthorized person from bearing, carrying or transporting firearms or other deadly weapons in public places, including all public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same, during the election period. Under Section 2 (b) of Resolution No. 8714, the term "firearm" includes "airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real." Hence, airsoft guns and their replicas/imitations are included in the gun ban during the election period from January 10, 2010 to June 9, 2010. Petitioner claims that he is a real party-in-interest, because he has been playing airsoft since the year 2000. The continuing implementation of Resolution No. 8714 will put him in danger of sustaining direct injury or make him liable for an election offense2 if caught in possession of an airsoft gun and its replica/imitation in going to and from the game site and playing the sport during the election period.

Petitioner contends that the COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in including "airsoft guns and their replicas/imitations" in the definition of "firearm" in Resolution No. 8714, since there is nothing in R.A. No. 7166 that mentions "airsoft guns and their replicas/imitations." He asserts that the intendment of R.A. No. 7166 is that the term "firearm" refers to real firearm in its common and ordinary usage. In support of this assertion, he cites the Senate deliberation on the bill, 3 which later became R.A. No. 7166, where it was clarified that an unauthorized person caught carrying a firearm during the election period is guilty of an election offense under Section 261 (q) of the Omnibus Election Code. Further, petitioner alleges that there is no law that covers airsoft guns. By including airsoft guns in the definition of "firearm," Resolution No. 8714, in effect, criminalizes the sport, since the possession of an airsoft gun or its replica/imitation is now an election offense, although there is still no law that governs the use thereof. Petitioner prays that the Court render a decision as follows: (1) Annulling Resolution No. 8714 insofar as it includes airsoft guns and their replicas/imitations within the meaning of "firearm," and declaring the Resolution as invalid; (2) ordering the COMELEC to desist from further implementing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned; (3) ordering the COMELEC to amend Resolution No. 8714 by removing airsoft guns and their replicas/imitations within the meaning of "firearm"; and (4) ordering the COMELEC to issue a Resolution directing the Armed Forces of the Philippines, Philippine National Police and other law enforcement agencies deputized by the COMELEC to desist from further enforcing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned. The main issue is whether or not the COMELEC gravely abused its discretion in including airsoft guns and their replicas/imitations in the term "firearm" in Section 2 (b) of R.A. No. 8714. The Court finds that the COMELEC did not commit grave abuse of discretion in this case. R.A. No. 7166 (An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes)4 provides: SEC. 32. Who May Bear Firearms. During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearms licenses shall be suspended during the election period. Only regular members or officers of the Philippine National Police, the Armed Forces of the Philippines and other law enforcement agencies of the Government who are duly deputized in writing by the Commission for election duty may be authorized to carry and possess firearms during the election period: Provided,

That, when in the possession of firearms, the deputized law enforcement officer must be: (a) in full uniform showing clearly and legibly his name, rank and serial number, which shall remain visible at all times; and (b) in the actual performance of his election duty in the specific area designated by the Commission. xxxx SEC. 35. Rules and Regulations. The Commission shall issue rules and regulations to implement this Act. Said rules shall be published in at least two (2) national newspapers of general circulation. Pursuant to Section 35 of R.A. No. 7166, the COMELEC promulgated Resolution No. 8714, which contains the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. The pertinent portion of the Resolution states: NOW, THEREFORE, pursuant to the powers vested in it by the Constitution of the Republic of the Philippines, the Omnibus Election Code (B.P. Blg. 881), Republic Acts Nos. 6646, 7166, 8189, 8436, 9189, 9369 and other elections laws, the Commission RESOLVED, as it hereby RESOLVES, to promulgate the following rules and regulations to implement Sections 32 and 33 of Republic Act No. 7166 in connection with the conduct of the May 10, 2010 national and local elections: SECTION 1. General Guiding Principles. During the election period: (a) no person shall bear, carry or transport firearms or other deadly weapons in public places, including all public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same; and (b) no candidate for public office, including incumbent public officers seeking election to any public office, shall employ, avail himself of or engage the services of security personnel or bodyguards, whether or not such bodyguards are regular members or officers of the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) or other law enforcement agency of the Government. The transport of firearms of those who are engaged in the manufacture, importation, exportation, purchase, sale of firearms, explosives and their spare parts or those involving the transportation of firearms, explosives and their spare parts, may, with prior notice to the Commission, be authorized by the Director General of the PNP provided that the firearms, explosives and their spare parts are immediately transported to the Firearms and Explosives Division, CSG, PNP. SEC. 2. Definition of Terms. As used in this Resolution: (a) Election Period refers to the election period prescribed in Comelec Resolution No. 8646 dated 14 July 2009 which is from 10 January 2010 to 09 June 2010; (b) Firearm shall refer to the "firearm" as defined in existing laws, rules and regulations. The term also includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real; (c) Deadly weapon includes bladed instrument, handgrenades or other explosives, except pyrotechnics. xxxx

SEC. 4. Who May Bear Firearms. Only the following persons who are in the regular plantilla of the PNP or AFP or other law enforcement agencies are authorized to bear, carry or transport firearms or other deadly weapons during the election period: (a) Regular member or officer of the PNP, the AFP and other law enforcement agencies of the Government, provided that when in the possession of firearm, he is: (1) in the regular plantilla of the said agencies and is receiving regular compensation for the services rendered in said agencies; and (2) in the agencyprescribed uniform showing clearly and legibly his name, rank and serial number or, in case rank and serial number are inapplicable, his agency-issued identification card showing clearly his name and position, which identification card shall remain visible at all times; (3) duly licensed to possess firearm and to carry the same outside of residence by means of a valid mission order or letter order; and (4) in the actual performance of official law enforcement duty, or in going to or returning from his residence/barracks or official station. xxxx (b) Member of privately owned or operated security, investigative, protective or intelligence agencies duly authorized by the PNP, provided that when in the possession of firearm, he is: (1) in the agency-prescribed uniform with his agency-issued identification card prominently displayed and visible at all times, showing clearly his name and position; and (2) in the actual performance of duty at his specified place/area of duty. xxxx SEC. 8. Enforcement. Any person who, not wearing the authorized uniform mentioned herein, bears, carries or transports firearm or other deadly weapon, shall be presumed unauthorized to carry firearms and subject to arrest.5 Petitioner contends that under R.A. No. 7166, the term "firearm" connotes real firearm. Moreover, R.A. No. 7166 does not mention airsoft guns and their replicas/imitations. Hence, its implementing rules and regulations contained in Resolution No. 8714 should not include airsoft guns and their replicas/imitations in the definition of the term "firearm." The Court is not persuaded. Holy Spirit Homeowners Association, Inc. v. Defensor6 held: Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law.7 Evidently, the COMELEC had the authority to promulgate Resolution No. 8714 pursuant to Section 35 of R.A. No. 7166. It was granted the power to issue the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166.

Under this broad power, the COMELEC was mandated to provide the details of who may bear, carry or transport firearms or other deadly weapons, as well as the definition of "firearms," among others. These details are left to the discretion of the COMELEC, which is a constitutional body that possesses special knowledge and expertise on election matters, with the objective of ensuring the holding of free, orderly, honest, peaceful and credible elections. In its Comment,8 the COMELEC, represented by the Office of the Solicitor General, states that the COMELECs intent in the inclusion of airsoft guns in the term "firearm" and their resultant coverage by the election gun ban is to avoid the possible use of recreational guns in sowing fear, intimidation or terror during the election period. An ordinary citizen may not be able to distinguish between a real gun and an airsoft gun. It is fear subverting the will of a voter, whether brought about by the use of a real gun or a recreational gun, which is sought to be averted. Ultimately, the objective is to ensure the holding of free, orderly, honest, peaceful and credible elections this year. Contrary to petitioners allegation, there is a regulation that governs the possession and carriage of airsoft rifles/pistols, namely, Philippine National Police (PNP) Circular No. 11 dated December 4, 2007, entitled Revised Rules and Regulations Governing the Manufacture, Importation, Exportation, Sale, Possession, Carrying of Airsoft Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft Teams. The Circular defines an airsoft gun as follows: Airsoft Rifle/Pistol x x x includes "battery operated, spring and gas type powered rifles/pistols which discharge plastic or rubber pellets only as bullets or ammunition. This differs from replica as the latter does not fire plastic or rubber pellet. PNP Circular No. 11 classifies the airsoft rifle/pistol as a special type of air gun, which is restricted in its use only to sporting activities, such as war game simulation.9 Any person who desires to possess an airsoft rifle/pistol needs a license from the PNP, and he shall file his application in accordance with PNP Standard Operating Procedure No. 13, which prescribes the procedure to be followed in the licensing of firearms.10 The minimum age limit of the applicant is 18 years old.11 The Circular also requires a Permit to Transport an airsoft rifle/pistol from the place of residence to any game or exhibition site.12 A license to possess an airsoft gun, just like ordinary licenses in other regulated fields, does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed.13 The inclusion of airsoft guns and airguns in the term "firearm" in Resolution No. 8714 for purposes of the gun ban during the election period is a reasonable restriction, the objective of which is to ensure the holding of free, orderly, honest, peaceful and credible elections.1avvphi1 However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term "firearm" under Resolution No. 8714, because they are not subject to any regulation, unlike airsoft guns.

Petitioner further contends that Resolution No. 8714 is not in accordance with the State policies in these constitutional provisions: Art. II, Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. x x x Art. XV, Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Art. II, Sec. 17. The State shall give priority to x x x sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. Petitioner asserts that playing airsoft provides bonding moments among family members. Families are entitled to protection by the society and the State under the Universal Declaration of Human Rights. They are free to choose and enjoy their recreational activities. These liberties, petitioner contends, cannot be abridged by the COMELEC. In its Comment, the COMELEC, through the Solicitor General, states that it adheres to the aforementioned state policies, but even constitutional freedoms are not absolute, and they may be abridged to some extent to serve appropriate and important interests. As a long-time player of the airsoft sport, it is presumed that petitioner has a license to possess an airsoft gun. As a lawyer, petitioner is aware that a licensee of an airsoft gun is subject to the restrictions imposed upon him by PNP Circular No. 11 and other valid restrictions, such as Resolution No. 8714. These restrictions exist in spite of the aforementioned State policies, which do not directly uphold a licensees absolute right to possess or carry an airsoft gun under any circumstance. Petitioners allegation of grave abuse of discretion by respondent COMELEC implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of power in an arbitrary manner by reason of passion, prejudice or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.14 The Court holds that the COMELEC did not gravely abuse its discretion in including airsoft guns and airguns in the term "firearm" in Resolution No. 8714 for purposes of the gun ban during the election period, with the apparent objective of ensuring free, honest, peaceful and credible elections this year. However, the replicas and imitations of airsoft guns and airguns are excluded from the term "firearm" in Resolution No. 8714. WHEREFORE, the petition is PARTLY GRANTED insofar as the exclusion of replicas and imitations of airsoft guns from the term "firearm" is concerned. Replicas and imitations of airsoft guns and airguns are hereby declared excluded from the term "firearm" in Resolution No. 8714. The petition is DISMISSED in regard to the exclusion of airsoft guns from the term "firearm" in Resolution No. 8714. Airsoft guns and airguns are covered by the gun ban during the election

period. No costs. SO ORDERED.

6. People vs. Alfonso 628 SCRA 430 (nakasulat 628 SCRA 431, but I double checked, 430 ung tugma)

G.R. No. 72573 August 31, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENATO ALFONSO, defendant-appellant. MELENCIO-HERRERA, J.: A prosecution for Rape before the then Court of First Instance of Rizal, which adjudged the accused. Renato Alfonso, guilty and sentenced him to reclusion perpetua. The facts, according to the prosecution, follow:
The 13 year old minor Laila Indita y Alfonso had known the appellant Renato Alfonso as a relative and neighbor in Santiago, Isabela since she was nine years old. With her mother's permission, she went to Manila alone to take her vacation at the house of her uncle Mario Alfonso, her mother's brother, who lives in Balic-Balic, Sampaloc, Manila. Taking the Pantranco bus from Isabela, she arrived at the Pantranco terminal Roosevelt Avenue, Quezon City about 4:00 o'clock early in the morning of April 3, 1982. It was still dark outside, so she decided to wait for the morning light before proceeding to her uncle's place in Balic-Balic. While passing time inside the waiting station at the bus terminal, she was approached by appellant Renato Alfonso who offered to accompany her to Balic-Balic as it was still dark. Recognizing and knowing him to be a relative, she accepted the invitation. Appellant guided her to a dark place still inside the terminal compound leading to Roosevelt Avenue which according to him, was short cut. In the said dark place behind one of the buses, a place where buses are cleaned, appellant made his move. He pushed Laila and she fell face up. While in that position, she noticed that appellant was beside her. She shouted for help but appellant covered her mouth with a handkerchief using his left hand. He then knelt between her legs and forcibly took off her shirt and panty with his right hand. Laila resisted by boxing the appellant, so that he was only able to pull her skirt and panty down to her knees. But appellant who is definitely stronger, succeeded in removing completely her shirt and panty. Now kneeling again between her legs, he pulled down his brief and pants to his knees. At this point, Laila was already feeling weak and could not move anymore because one of her hands was pinned down by the left hand of the appellant and her other hand was under her legs. It was her first experience with a man that she was so afraid, stunned by it and became immobile. Appellant, using his right hand, mashed her breasts and then inserted his penis into her vagina. When the left hand of the appellant covering her mouth with a handkerchief loosened, she shouted for help. Appellant was on top of her then and he took something from his side and pressed it against her throat, threatening to kill her if she would shout. After having carnal knowledge with Laila, appellant put on his pants and brief, and then left. It was only that time that the handkerchief was removed from the mouth of the minor. Then she put on her panty and shirt and ran to a bright place. 1

After the incident, Laila testified that she proceeded to her uncle Mario's house at Balic-Balic and immediately upon her arrival she took a bath because her clothes were dirty. She did not reveal the outrage on her person to her uncle whom she just greeted. It was only when her mother arrived in Manila three days later that she disclosed the whole truth to her. Accompanied by her mother and aunt, Laila was taken to the Camp Crame Laboratory on April 7, 1982 where she underwent medical examination. The Medico-Legal Report, dated April 13, 1982, gave the following findings:
General and Extrageneral: Fairly developed, fairly nourished and coherent female subject. Breasts are canonical with pale brown areola and nipples from which no secretion could be pressed out. Abdomen is flat and tight. There are no external signs of recent application of any form of trauma. Genital: There is scanty growth of pubic hair. Labia majora are full, convex and coaptated with the pale brown labia minora presenting in between. On separating the same are disclosed a slightly congested vulvar mucosa and an elastic fleshy-type hymen with shallow, healed lacerations at 4 and 8 o'clock. External vaginal orifice offers strong resistance to the introduction of the examining index finger and the virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color and consistency with scanty amount of mucoid secretion. Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa. Remarks: subject is in non-virgin state physically. (Exhibit "C").

On April 16, 1982, Laila executed a statement before the police reporting the incident (Exhibit "B"). On May 28, 1982, a Complaint (Exhibit "A") sworn to by Laila before the Assistant City Fiscal, was filed in Court after a preliminary investigation conducted by the latter the day before. Upon arraignment, the accused entered a plea of "not guilty." The defense put up by the accused was one of denial and alibi, as follows:
On April 3, 1982, he was at the Philippine Heart Center of Quezon City, because his wife was confined thereat for operation. Due to the condition of his wife at the said hospital, he did not leave from April 3, 4 and 5, 1982. After his wife was operated on, Mario Alfonso and his wife visited her sometime on April 12, 1982, and they were happy. During the time that the couple were in the hospital, they never mentioned of the crime of rape. On May 24, 1982, after lunch, he saw the wife of Mario Alfonso and they even exchanged greetings. Not long after, the mother of Laila arrived, with a person who showed a badge, and invited him outside. He Identified himself as a policeman and thence brought him to Precint IV at Baler, Quezon City. He asked the police why, and the policeman told him to explain everything in the precint. While in the precint, he also asked the desk officer why, and he said he is being charged of rape. He answered that he never committed any crime. He also told the mother of the minor that he did not have anything to do with his (sic) daughter. He gives the reason for Laila and her father in filing the case as his failure to give money to Mario Alfonso when the latter was borrowing money from him to go abroad. When he did not give any, the said Mario Alfonso menacingly warned that he will harass him. 2

Maura Samin a 51-year old widow, laundry woman, resident of Barrio Rosario, Santiago, Isabela, corroborated the accused's alibi by declaring.
That the accused Renato Alfonso and his wife were her neighbors; that in the last week of March and the first week of April 1982, Renato Alfonso and his wife Teresita were in the hospital; that she was keeping watch over her; that Renato's schedule in watching over her was 6 o'clock in the evening up to 1 o'clock in the morning, that on April 3, 1982, she watched over Teresita

Alfonso from 1 o'clock at dawn to 6 o'clock in the morning; that during that time Renato was sleeping in the sofa at the hospital; that Renato never left the hospital from 1 o'clock at dawn of April 3, to 6 o'clock in the morning of that day. 3

Teresita Alfonso, 38-year-old wife of the accused, corroborated the latter's presence in the hospital on the date and around the hour of the incident, thus:
That on April 3, 1982, she was at the hospital; that she was going to have a heart operation; that her husband Renato Alfonso did not leave her; that during that time she was very sick and very weak ... 4

After trial, the lower Court * rendered a verdict of guilty, and decreed:
Wherefore, after analyzing with care and circumspection, the evidence adduced, the court finds, that the prosecution has established the guilt of the accused beyond reasonable doubt for the crime of Rape, and therefore, imposes upon Renato Alfonso the penalty of Reclusion Perpetua, and to pay the costs. He is likewise ordered to indemnify the minor in the sum of P20,000. by way of moral damages, plus the further sum of P10,000 as exemplary damages without subsidiary imprisonment in case of as insolvency. SO ORDERED. 5

In this appeal the accused attributes the following errors to the Trial Court:
I The Court a quo erred in finding that the crime of rape as described by the complainant could have been committed in a public place, like the Pantranco Terminal in Metro Manila. II The Court a quo erred in finding the girl was frank in reporting the matter to her mother and the doctor, indicative of the probability of the commission of the crime of rape. III The Court a quo erred in holding that the girl being from Santiago, Isabela would not fabricate and state publicly that she was raped, if that were not the truth. IV The Court a quo erred in holding that the failure of the accused in lending money to Mario Alfonso, uncle of the complainant, is not enough reason for the fabrication of the case even under the circumstances that subsequently happened. V The Court a quo erred in holding that from the Heart Center for Asia to the Pantranco Terminal does not preclude the happening of the alleged incident complained of. VI And the Court a quo erred in finding that the guilt of the accused was proven beyond reasonable doubt.

The assigned errors are bereft of basis. 1. Laila was categorical about the place where she was ravished at the Pantranco terminal. It was a dark place behind parked buses which were to be cleaned. 6 It was not impossible for the crime to have been committed thereat, as alleged by the defense, since the concurring circumstances of time around 4:00 o'clock in the morning, and place when there was very little mobility in the area afforded adequate opportunity for the crime to have been committed. That there were hardly any people around is shown by the fact that although Laila

shouted for help before the accused gagged her, no one came to her rescue. 7 2. It is true that Laila did not report the incident to her uncle upon her arrival at the latter's home but did so only to her mother three (3) days later. The three-day delay cannot affect her credibility. It was perfectly natural for her to have had qualms about revealing a humiliating episode in her life to her uncle, a man, who was only collaterally related to her compared to her mother in whom she could repose full trust and confidence and who could listen to her sad and delicate plight with fuller understanding and deeper compassion. 3. In this third assigned error, the accused assails Laila's credibility and insists that just because she hails from Santiago, Isabela, which is not a far-flung municipality but an urbanized community, is no assurance that she is telling nothing but the truth. Even assuming this to be so for the sake of argument, it was not that factor alone which swayed the judgment of the Trial Court. It found Laila's testimony candid, straightforward and convincing, free from any serious contradiction. The cross-examination to which she was subjected did not make her waver. She said all that was needed to signify that the crime had been committed. 8 Besides, it is, in fact, unthinkable that a 13-year old provincial lass would falsely impute the offense of rape against one whom she had known as a relative, expose herself to the shame and humiliation of a public trial, and to an examination of her private parts at an age when she was just flowering into womanhood, if her purpose were other than to bring before the bar of justice the villain who had wronged her. There may be some inconsistencies between her statement to the police and her testimony in Court. For example, in her statement she stated that the accused removed his pants and brief but on the witness chair she said that the accused merely pulled them down. These, however, refer to minor matters and do not affect her overall credibility. A witness whose testimony is perfect in all aspects, without a flaw and remembering even the minutest details which jibe beautifully with one another, lays herself open to suspicion of having been coached or having memorized statements earlier rehearsed. 9 4. The accused asserts that Laila was motivated to file the complaint only because he had refused to lend money to her uncle, Mario Alfonso. The statement is unworthy of credence just as it is logically unsound. For one, it is not borne out by the records. For another, the failure to lend money to an uncle has no connection at all with the indignity committed on Laila's person. It is incredible that a 13-year old girl would claim in public that she was the victim of sexual assault simply to settle a score which an uncle, a collateral relative, has with the accused. 5. The only defense of the accused is that of alibi and denial. He claimed that he was at the Philippine Heart Center for Asia ministering to his wife who was confined thereat from March 15 to April 15, 1982. For the defense of alibi to succeed, however, an accused must establish physical impossibility and improper motive of prosecution witnesses. 10 The accused has been unsuccessful in either, As Maura Samin the other watcher at the hospital, testified, on April 3, 1982, the date of the incident, her "duty" was from 1:00 A.M. to 6:00 A.M., during which time interval, the accused was sleeping on a sofa outside his wife's hospital room. 11 The accused himself admitted that he slept outside the room because starting at 1:00 o'clock A.M., visitors were no longer allowed to go inside. In other words, the accused was not on watch on April 3, 1982 at around 4:00 A.M. And since he slept outside the room, he could have easily slipped out of the hospital at that time without Maura's nor his wife's knowing about it. For, as the Trial Court had found, and in this it did not err the distance between the Philippine Heart Center and the Pantranco Terminal is only short so that it was not physically impossible for the

accused to have been at the scene of the crime at the time it was committed. More, a defense of alibi cannot prosper where the accused has been positively Identified as the assailant, as in this case. 12 And as far as improper motivation of prosecution witnesses is concerned, this has not been shown, but on the contrary, as pointed out above, Laila and her family could not have been impelled by any other motive except to seek redress for the shame and dishonor brought on Laila and the wrong done to all of them. 6. In claiming that his guilt has not been proven beyond reasonable doubt, the accused would vary the interpretation of the medico-legal report in that the finding of "strong resistance of the vaginal orifice of the complainant to the insertion of the index finger and the virgin-sized vaginal speculum" as well as the shallow laceration of the hymen would negative rape. Again, this is without merit. The medical certificate clearly concluded "Subject is in non-virgin state, physically" (Exhibit "C"). The doctor's conclusion, therefore, that Laila lost her virginity is an incontestable fact. 13 The medical finding of "resistance," far from disproving rape, only serves to show that Laila was a virgin at the time she was abused. 14 And as to the finding of shallow laceration of the hymen, this neither negatives rape for, as has been consistently held, the slightest penetration of the labia consummates the crime of rape. 15 Of note also is the fact that medical examination was performed only four (4) days after the incident, which could account for the shallowness of the laceration. Neither does the absence of a finding in the medical certificate of physical injuries on Laila's person negate the commission of Rape. It will be remembered that considering the petite size of the victim (5' 1" in height and 100 lbs. in weight), the accused, whom the Trial Court described as "tall and bulky," could have easily overpowered her without much use of force. It has also been held that absence in the medical certiorari certificate of external signs of physical injuries and spermatozoa on the victim does not negate the commission of rape. 16 Besides, the medical examination is merely corroborative 17 and is not an indispensable element in the prosecution of rape. 18 The fact that Laila's panty and dress were not presented in evidence cannot militate against the finding of guilt of the accused. As aptly held in People vs. Garcia, 19 the non- presentation of the torn and blood-stained dress and underwear of the complainant does not destroy the case for the prosecution, there being sufficient and convincing evidence to prove the rape charges beyond reasonable doubt. Those clothes are not essential, and need not be presented, as they are not indispensable evidence to prove rape. 20 That Laila's testimony stands uncorroborated would neither tilt the scales in favor of the accused. There is ample jurisprudence holding that "when a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion. 21 For, by the very nature of the crime of Rape, conviction or acquittal depends almost entirely on the credibility of the complainant's testimony because of the fact that usually only the participants can testify as to its occurrence. 22 In this case, like the Trial Court, we have found no reason to doubt Laila's credibility. The evidence establishes the guilt of the accused beyond reasonable doubt. WHEREFORE, the judgment appealed from is hereby affirmed. Costs against accusedappellant Renato Alfonso. SO ORDERED.

7. People vs. Rellota (Variance Doctrine in Criminal Prosecution) 626 SCRA 422

G.R. No. 168103 August 3, 2010 [Formerly G.R. Nos. 155930-32] PEOPLE OF THE PHILIPPINES, Appellee, vs. ALEJANDRO RELLOTA Y TADEO, Appellant. DECISION PERALTA, J.: Youth and immaturity are generally badges of truth.1 For this Court's consideration is an appeal from the Decision 2 dated April 14, 2005 of the Court of Appeals (CA) in CA-G.R. C.R.-H.C. No. 00117, affirming, with modification, the Decision3 dated August 8, 2002 of the Regional Trial Court (RTC) of Antipolo City, Branch 73, in Criminal Case Nos. 94-10812, 94-10813 and 94-10814, and finding appellant Alejandro T. Rellota, guilty beyond reasonable doubt of two (2) counts of consummated rape and one (1) count of attempted rape. The antecedent facts are the following: AAA,4 the offended party, was born on July 16, 1981 in XXX, Eastern Samar and was a little over twelve (12) years old when the incidents allegedly happened. Together with her siblings, BBB and CCC, AAA lived with her aunt, DDD, and the latter's second husband, appellant, in Antipolo City, Rizal from September 1992 to January 1994. Also living with them were two (2) of AAA's cousins. During that period, DDD and appellant were sending AAA, BBB and CCC to school. At the time the incidents took place, DDD was working overseas. Based on the testimony of AAA, appellant had been kissing her and touching her private parts since September 1993. She claimed that appellant raped her several times between September 1993 and January 1994. She narrated that appellant would usually rape her at night when the other members of the family were either out of the house or asleep. AAA stated that she resisted the advances of appellant, but was not successful. Appellant, according to her, would usually place a bolo beside him whenever he would rape her. She added that appellant would threaten AAA by telling her that he would kill her brother and sister and that he would stop sending her to school. Around noon of December 20, 1993, AAA took a bath at an artesian well near their house and after bathing, she wrapped her body with a towel before going inside their house. Appellant followed her to the bedroom, pulled down her towel and laid her on the bed. He tied her hands with a rope before forcibly inserting his penis inside her vagina. AAA fought back by kicking and scratching appellant, but the latter was not deterred. Thereafter, appellant untied the hands of AAA and left the room. A few moments later, appellant returned in the bedroom and raped her again. On January 31, 1994, the same incident happened. AAA went inside their room

after taking a bath, not knowing that appellant was inside. Upon seeing her, appellant snatched the towel around her body and laid her down on the sofa. He kissed her and touched her private part, while AAA kicked him and scratched his arms. She was able to push him. After which, appellant ran out the door. AAA, after that incident, told her older sister about the repeated deeds of the appellant. Afterwards, her sister accompanied AAA to the police station. On February 3, 1994, three (3) separate complaints for rape were filed against appellant with the trial court and was raffled in different branches.5 The Complaints read as follows: Criminal Case No. 94-10812 That on or about and sometime during the month of December, 1993 in the Municipality of Antipolo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there willfully, unlawfully and feloniously by means of force and intimidation, have sexual intercourse with the undersigned complainant AAA, a minor 12 years of age, against the latter's will and consent. CONTRARY TO LAW.6 Criminal Case No. 94-10813 That on or about the month of September, 1993 in the Municipality of Antipolo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there willfully, unlawfully and feloniously by means of force and intimidation, have sexual intercourse with the undersigned complainant AAA, a minor twelve years of age, against the latter's will and consent. CONTRARY TO LAW.7 Criminal Case No. 94-10814 That on or about the 31st day of January, 1994 in the Municipality of Antipolo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there willfully, unlawfully and feloniously by means of force and intimidation, have sexual intercourse with the undersigned complainant AAA, a minor 12 years of age, against the latter's will and consent. CONTRARY TO LAW.8 Appellant, with the assistance of counsel de oficio, pleaded not guilty during arraignment. Complainant AAA filed a Motion for the Consolidation 9 of the three complaints, which was eventually granted.10 Thereafter, trial ensued. The prosecutor presented the testimonies of AAA and Dr. Rosaline Onggao, a medico-legal officer. On the other hand, the defense presented the testimony of appellant who denied

the charges against him. According to him, he could not think of any reason why the complainant filed the complaints. He also claimed that his sister-in-law, who helped the complainant file the charges was mad at him for not giving her a loan. The trial court, in a Decision11 dated August 8, 2002, found appellant guilty beyond reasonable doubt of three (3) counts of rape as alleged in the complaints, the dispositive portion of which reads: WHEREFORE, premises considered, accused ALEJANDRO RELLOTA y TADEO is hereby found guilty beyond reasonable doubt and is hereby sentenced to suffer the penalty of Reclusion Perpetua for each count in Criminal Case Nos. 9410812, 10813 and 10814. The accused is further ordered to indemnify [AAA] in the amount of P50,000.00 for each of the three (3) Criminal Cases, or a total of P150,000.00. SO ORDERED.12 In not imposing the penalty of death, the trial court reasoned out that AAA was already over 12 years old at the time the incidents happened and that although she was below 18 years old, the relationship of AAA and the appellant had not been sufficiently established as the marriage between AAA's aunt and the appellant was not supported by any documentary evidence. A Notice of Appeal was filed and this Court accepted 13 the appeal on July 16, 2003. However, in a Resolution14 dated September 6, 2004, this Court transferred the case to the CA in conformity with People of the Philippines v. Efren Mateo y Garcia,15 modifying the pertinent provisions of the Revised Rules on Criminal Procedure, more particularly Sections 3 and 10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125 and any other rule insofar as they provide for direct appeals from the Regional Trial Courts to this Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, as well as the Resolution of this Court en banc, dated September 19, 1995, in Internal Rules of the Supreme Court in cases similarly involving the death penalty, pursuant to the Court's power to promulgate rules of procedure in all courts under Article VIII, Section 5 of the Constitution, and allowing an intermediate review by the Court of Appeals before such cases are elevated to this Court. In a Decision16 dated April 14, 2005, the CA affirmed, with modification, the Decision of the trial court, disposing it as follows: WHEREFORE, the Decision appealed from is hereby AFFIRMED in so far as appellant is found GUILTY of two (2) counts of consummated rape and sentenced to reclusion perpetua for each count in Criminal Case Nos. 94-10812 and 9410813. The Decision is however MODIFIED as follows: 1. In Criminal Case No. 94-10814, appellant is found GUILTY beyond reasonable doubt of the crime of attempted rape and is sentenced to an indeterminate penalty of SIX (6) years of prision correccional, as minimum, to TEN (10) YEARS of prision mayor, as maximum. He is also ordered to pay AAA the amounts of P30,000.00 as civil indemnity and P15,000.00 as moral damages.

2. In Criminal Case Nos. 94-10812 and 94-10813, appellant is ordered to pay AAA the amount of P50,000.00 as moral damages for each count in addition to the amount of P50,000.00 already imposed as civil indemnity for each count. SO ORDERED. Hence, the present appeal. In his Brief17 dated October 24, 2003, appellant assigned this lone error: THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING HEREIN [APPELLANT] DESPITE THE FACT THAT AAA'S TESTIMONY WAS INCONSISTENT AND FULL OF FALSEHOODS. Appellant claims that it was impossible for him to have raped AAA in September 1993 because his wife only left for Jeddah on October 21, 1993. He points out that AAA herself testified that he only kissed her, touched her breast and private parts, but failed to mention that he inserted his penis to her vagina. He also denied raping AAA on January 31, 1994 and December 20, 1993. He further claims that the filing of the criminal charges were instigated by AAA's aunt for his refusal to lend her money. In short, appellant assails the credibility of AAA's testimony as shown by its inconsistencies and falsehoods. On the other hand, the Office of the Solicitor General (OSG), in its Brief 18 dated November 27, 2003, averred that the prosecution was able to satisfactorily prove that appellant raped the offended party in September and December 1993. It further stated that appellant used his moral ascendancy over the victim in having carnal knowledge of her against her will. The OSG also argued that the medical report bolsters the victim's claim that she was repeatedly raped by appellant and that the latter's defense of denial is weak and deserves scant consideration. In agreement with the CA Decision, the OSG posited that there is inadequate proof that the offended party was actually raped on January 31, 1994 and that the penalties imposed by the trial court should be adjusted in accordance with the crimes proved. After a careful study of the arguments presented by both parties, this Court finds the appeal bereft of any merit. A rape charge is a serious matter with pernicious consequences both for the appellant and the complainant; hence, utmost care must be taken in the review of a decision involving conviction of rape.19 Thus, in the disposition and review of rape cases, the Court is guided by these principles: first, the prosecution has to show the guilt of the accused by proof beyond reasonable doubt or that degree of proof that, to an unprejudiced mind, produces conviction; second, the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence of the defense; third, unless there are special reasons, the findings of trial courts, especially regarding the credibility of witnesses, are entitled to great respect and will not be disturbed on appeal; fourth, an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove;

and, fifth, in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution.20 Appellant insists that the trial court erred in giving credence to the testimony of AAA. He claims that he could not have possibly raped AAA in September 1993 because, first, his wife was still in the Philippines and left for Jeddah, Saudi Arabia only on October 21, 1993; and second, based on the testimony of AAA, appellant merely kissed and touched her breasts and private parts, but never did she mention that he inserted his penis into her vagina. The contentions are devoid of merit. The claim of appellant that he could not have raped AAA because his wife was still in the country during the alleged period when the rape was committed is so flimsy that it does not deserve even the slightest consideration from this Court. It has been oft said that lust is no respecter of time or place. Neither the crampness of the room, nor the presence of other people therein, nor the high risk of being caught, has been held sufficient and effective obstacle to deter the commission of rape.21 There have been too many instances when rape was committed under circumstances as indiscreet and audacious as a room full of family members sleeping side by side. 22 There is no rule that a woman can only be raped in seclusion.23 As to the contention of appellant that the testimony of AAA was barren of any statement that the former's penis was inserted in the latter's vagina is not quite accurate. AAA categorically stated during her testimony that she was raped, thus: Q: On December 20, 1993, at around 12:00 o'clock noon, do you remember where were you? A: I was at the artisan well. Q: Where is that artisan well located? A: Near the house of Alejandro Rellota. Q: What were you doing in the vicinity of the arisan well? A: I was taking a bath. Q: What time did you start taking a bath? A: I started taking a bath about 12:00 o'clock and I finished at around 1:00 o'clock. Q: After taking a bath, what did you do next? A: I went inside the house. Q: When you went inside the house, what happened next? A: I covered my body with a towel and Alejandro Rellota pulled it. Q: Where was Alejandro Rellota at that time? A: He went inside the room.

Q: Before he went inside the house, where was Alejandro Rellota, if you know? A: He came from the other room. Q: You said once inside the house, Alejandro Rellota pulled your towel, what happened after that? A: He raped me. Q: When you said that Alejandro Rellota raped you, what did Alejandro Rellota do exactly to you? A: He laid me on the bed and he tied my hands. Q: After he tied your hands, what did he do next? A: He forced me and inserted his penis inside my vagina. Q: After he placed his penis inside your vagina, what did he do next? A: He left. Q: You said he placed his penis inside your vagina, will you tell how long was his penis inside your vagina? A: One minute. Q: When he placed his penis inside your vagina for around one minute, what, if any, did you feel when he inserted his penis? A: I felt painful. (sic) Q: You said Alejandro Rellota pulled your towel, when he did that, what did you do? A: I resisted. Q: What exactly did you do when you resisted? A: I tried to avoid him. Q: When you said your hands were tied while the accused Alejandro Rellota was doing this, what were you doing? A: I pinched his hands and tried to take the rope off my hands. Q: Were you successful in taking the rope? A: No. Q: At the time Alejandro Rellota was doing this while he was tying your hands, what was he wearing at that time? A: Short pants and t-shirt. Q: You said Alejandro Rellota placed his penis inside your vagina while you were lying down and tied your hands. When Alejandro Rellota placed his penis inside your vagina, what did he do to his clothes? A: He took it off.24 xxxx

Q: You said when being asked by the Honorable Court that you were wearing t-shirt and short, you also mentioned that at the time you entered the house after having taken a bath that you were only wearing a towel. Can you explain when for the first time did you wear that t-shirt and shorts in December? A: Because when he pulled the towel, he pulled me to the bed, he embraced me and he left and then I immediately wear (sic) my panty and tshirt then he returned for the second time. Q: When he returned, what did he do? A: He repeated his acts. COURT: You mean to say you were raped twice in December 1993? A: Yes, Your Honor. PUBLIC PROSECUTOR: afterwards? After he did that again, what happened

A: The incident happened inside his room and after the incident, he ordered me to go out of his room and I went to my bed and sleep. (sic)25 xxxx Q: Can you please tell the Honorable Court on December 20, how many times did he rape you? A: Twice. Q: First time when after he pulled your towel? A: Yes. Q: When he pulled off your towel, you were not wearing anything? A: Yes, my body was wrapped with towel only. Q: The second time he raped you, you were wearing some clothes? A: Yes.26 This Court is also not swayed by the claim of appellant that the testimony of AAA is full of inconsistencies and falsehoods. As accurately propounded by the CA: Appellant further contends that the testimony of AAA regarding the rape that took place on December 20, 1993 is full of lies and falsehood. He points out as lie and inconsistent AAA's statement that he removed her shorts and panty when she was raped on December 20, 1993. He argues that this could not have been possible because, as earlier testified to by AAA, she merely wrapped her body with a towel having just taken a bath. He also points out as lie and inconsistent AAA's statement that after he pulled her to the bed, raped her and then left, she immediately put on her panty and t-shirt. He argues that such putting on her panty and t-shirt could not have been also possible because, as testified to by her, her hands were tied with a rope. Again, the contentions are without merit.

In her testimony, AAA narrated that she was raped twice on December 20, 1993: the first time was when she came from her bath, wrapped only with a towel and appellant pulled her to the bed, tied her hands and ravished her, and the second time was when she had already dressed up and appellant returned to the room to rape her again. When AAA testified that appellant removed her shorts and panty before raping her, she was referring to the second time she was raped on that day. Hence, her statements were not inconsistent. There was a lapse of time between the first and the second rape. Likewise, when AAA testified that she put on her t-shirt and panty, she was referring to the first time of the rape where, after ravishing her, appellant untied her hands and left only to return to rape her once more. There was enough time for AAA to dress up.27 Nevertheless, the said inconsistencies pointed out by appellant are minor ones which do not affect the credibility of AAA nor erase the fact that the latter was raped. The inconsistencies are trivial and forgivable, since a victim of rape cannot possibly give an exacting detail for each of the previous incidents, since these may just be but mere fragments of a prolonged and continuing nightmare, a calvary she might even be struggling to forget. 28 As this Court pronounced in People v. Delos Reyes:29 It is established jurisprudence that testimony must be considered and calibrated in its entirety inclusive and not by truncated or isolated passages thereof. Due consideration must be accorded to all the questions propounded to the witness and her answers thereto. The whole impression or effect of what had been said or done must be considered and not individual words or phrases alone. Moreover, rape is a painful experience which is oftentimes not remembered in detail. It causes deep psychological wounds, often forcing the victims conscience or subconscious to forget the traumatic experience, and casts a stigma upon the victim, scarring her psyche for life. A rape victim cannot thus be expected to keep an accurate account and remember every ugly detail of the appalling and horrifying outrage perpetrated on her especially since she might in fact have been trying not to remember them. Rape victims do not cherish in their memories an accurate account of when and how, and the number of times they were violated. Error-free testimony cannot be expected most especially when a young victim of rape is recounting details of a harrowing experience, one which even an adult would like to bury in oblivion deep in the recesses of her mind, never to be resurrected. Moreover, a rape victim testifying in the presence of strangers, face to face with her tormentor and being cross-examined by his hostile and intimidating lawyer would be benumbed with tension and nervousness and this can affect the accuracy of her testimony. Often, the answers to long-winded and at times misleading questions propounded to her are not responsive. However, considering her youth and her traumatic experience, ample margin of error and understanding should be accorded to a young victim of a vicious crime like rape.30 Anent the other instances that appellant was able to force himself and had carnal knowledge of AAA, the latter testified as follows: FISCAL CLUTARIO: Miss witness, you stated during your last testimony on September 22, 1994 that you were raped in December 1993 by the

accused. Before December 1993, what if anything did the accused do to you? A: Yes. Q: What did the accused do to you? A: Since September 1993, the accused has been kissing me and touching my private parts. Q: How many times did the accused do that? A: Several times. Q: Aside from kissing you and touching your private parts in September 1993, what else did he do to you? A: Yes. Q: What is that? A: He raped me.31 xxxx Q: In September 1993, did the accused placed (sic) his penis inside your vagina? A: Yes, September 1993. COURT: How many times? A: Several times in September. COURT: In how may occasions did it happen? A: Once almost everyday.32 AAA's further testimony during cross-examination and re-direct examination shows the consistency of her allegation that she was forced against her will and was intimidated by the appellant when the latter satisfied his lust. Thus, as testified: Cross-examination: Q: When you were allegedly raped, did you not fight back or shout when these abuses were being committed? A: I fought back but I did not shout. Q: And your cousin, brother and sister were not awakened at the time you were allegedly raped? A: No, sir. Q: But you could arose (sic) them or call them for help. A: I was afraid during that time. Q: Were you being threatened by the accused when these rapes were being committed? A: He told me that I will not be sent to school if I will shout and fight back,

and I wanted to go to school during that time. Q: But you were not threatened with any weapon or physical harm during the time that you were threatened? A: He showed me a bolo. Q: But he was not holding this bolo at the time the alleged rape was committed? A: It was beside him, sir. Q: He did not even touch that bolo while the rape was being committed? A: No, sir. Q: And you could even grab that bolo if you wanted to during the alleged time of rape? A: I was afraid. Q: As far as you can remember, how many times were you raped by the accused? A: Many times, I can no longer remember because he treated me as his wife. Q: But despite the opportunity open to you for you to escape, you did not use them? A: I tried to escape but I did not know where to go.33 xxxx Re-direct: PUBLIC PROSECUTOR: When you said a while ago that you did not shout or asked for help from your brother and cousin and you said you were threatened, did you believe your uncle when he threatened you? A: Yes, sir. Q: Why did you believe him? A: Because I was afraid. Q: And the threat that he made, that frightened you? A: His voice, "masyadong mataas." When I was still a child he used to spank me. Q: What was (sic) the exact words that he said that made you frightened? A: That I cannot go to school. Q: That is all? A: He also told me that he will kill my brother and sister. Q: Did you believe him when he said he will kill your brother and sister? A: Yes, sir, because he has a frightful face.

Q: Did you see your uncle physically harm your brother and sister even before or after the incident? A: Yes, sir, he had made physical harm on my brother and sister.34 Hence, the trial court did not err in appreciating the testimony of AAA. The unbroken line of jurisprudence is that this Court will not disturb the findings of the trial court as to the credibility of witnesses, considering that it is in a better position to observe their candor and behavior on the witness stand. Evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses and their demeanor, conduct, and attitude, especially under cross-examination. Its assessment is respected unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case. 35 Furthermore, the above testimonies of AAA positively identifying appellant as the one who defiled her were all the more strengthened by the Medico-Legal Report36 conducted by Dr. Rosaline Onggao, who also testified that: PUBLIC PROSECUTOR: Can you tell us what is in the findings which would verify or confirm the information given to you by AAA that she was sexually abused for several times? A: The hymen. Q: Where particularly in the hymen would confirm that she was sexually abused? A: The healed laceration in the hymen. Q: Based on the healed laceration, would you be able to tell this Honorable Court the time when the sexual abuse occurred? A: Since the lacerations were healed more than 7 days or more prior to my examination, it could be more than a month. Q: What could be the cause of laceration in the hymen? A: The laceration could have been caused by forcible entry of a hard object. Q: Would you consider the penis as a hard blunt object? A: Yes, sir.37 It is settled that when the victims claim of rape is corroborated by the physical findings of penetration, there exists sufficient basis for concluding that sexual intercourse did take place.38 For his defense, appellant merely denied having raped AAA. However, denial, when unsubstantiated by clear and convincing evidence, constitutes negative self-serving evidence which deserves no greater evidentiary value than the testimony of a credible witness who testified on affirmative matters. 39 In the present case, the records are devoid of any clear and convincing evidence that would substantiate appellant's denial. In the same manner, appellant's claim that the filing of the criminal charges against him was instigated by AAA's aunt because he failed to lend the latter money is uncorroborated by any evidence.

Thus, when there is no evidence to show any improper motive on the part of the rape victim to testify falsely against the accused or to falsely implicate him in the commission of a crime, the logical conclusion is that the testimony is worthy of full faith and credence.40 With regard to the modification of the trial court's decision by the CA as to the latter's findings that only an attempted rape was committed on January 31, 1994, this Court disagrees. AAA's testimony belies the consummation, as well as the attempt to rape her on the said date. She said that: Q: My question is, after December 1993, what else did the accused do to you? A: On January 31, 1994, the accused kissed me and touched my private parts again. Q: Where did this happen? A: Inside our room in our house at St. Anthony, Inarawan, Antipolo, Rizal. Q: Aside from kissing you and touching your private parts in your house where you were living, what else did the accused do to you? A: On January 31, after I took a bath when I went inside our room wrapped in towel, I did not know that the accused was inside the room, he removed the towel and laid me down at the sofa, tried to kiss me but I kicked him and scratched his arms. Q: Then what happened next? A: Afterwards, he went out of the room, I dressed up and I was trying to get out of the house and he was preventing me from going out. He was blocking my way. He again wanted to rape me. Q: What happened next? A: I pushed him and I was able to open the door and I ran out of the house. Q: You are telling that in January 1994, all these things the accused did to you except inserting his penis to your vagina? A: Yes.41 xxxx PUBLIC PROSECUTOR: In January 1994, did the accused raped (sic) you by placing his penis inside your vagina? A: Not exactly January 31, 1994, but I remember between January 1 to 5. Q: Nothing happens on January 31, 1994? A: I was not raped anymore on January 31, 1994, because I told my sister about it already.42 Attempted rape requires that the offender commence the commission of rape directly by overt acts, but does not perform all the acts of execution by reason of

some cause or accident other than his own spontaneous desistance. 43 The prosecution must, therefore, establish the following elements of an attempted felony: 1. The offender commences the commission of the felony directly by overt acts; 2. He does not perform all the acts of execution which should produce the felony; 3. The offenders act be not stopped by his own spontaneous desistance; 4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.44 The above elements are wanting in the present case. Appellants act of removing the towel wrapped in the body of AAA, laying her on the sofa and kissing and touching her private parts does not exactly demonstrate the intent of appellant to have carnal knowledge of AAA on that particular date; thus, dismissing the mere opinion and speculation of AAA, based on her testimony, that appellant wanted to rape her. Even so, the said acts should not be left unpunished as the elements of the crime of acts of lasciviousness, as defined in the Revised Penal Code, in relation to Section 5,45 Article III of Republic Act (R.A.) No. 7610, 46 AAA, being a minor when the incident happened, are present. In People v. Bon:47 The elements of the crime of acts lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done: (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex. Section 32, Article XIII, of the Implementing Rules and Regulations of RA 7610 or the Child Abuse Law defines lascivious conduct, as follows: [T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.48 Clearly, all the elements of the offense are present. The actions of appellant on January 31, 1994, i.e., laying AAA on the sofa and kissing and touching her private parts are, by definition, lascivious or lewd, and based on AAA's testimony, the intimidation from appellant was in existence and apparent. Section 5 of R.A. No. 7610 does not merely cover a situation of a child being abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation.49 As case law has it, intimidation need not necessarily be irresistible.50 It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. 51 This is especially true in the case of young, innocent and immature girls who could not be expected to act with equanimity of disposition and with nerves of steel. 52

Young girls cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat.53 Incidentally, under Section 4, Rule 120 of the Revised Rules of Criminal Procedure, when there is a variance between the offense charged in the complaint or information, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. 54 As explained by this Court in People v. Abulon:55 However, following the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120, Rules of Criminal Procedure, appellant can be found guilty of the lesser crime of acts of lasciviousness. Said provisions read: Sec. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitutes the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter.1avvphi1 Indeed, acts of lasciviousness or abusos dishonestos are necessarily included in rape.56 In People v. Candaza,57 this Court ruled that the penalty for acts of lasciviousness performed on a child under Section 5(b) of R.A. No. 7610 is reclusion temporal in its medium period to reclusion perpetua; thus, applying the Indeterminate Sentence Law, the penalty to be imposed on appellant should thus fall within the range of prision mayor medium to reclusion temporal minimum, as minimum, to reclusion temporal maximum, as maximum. WHEREFORE, the appealed Decision dated April 14, 2005 of the Court of Appeals finding appellant Alejandro of Rellota y Tadeo guilty beyond reasonable doubt of the crime of two (2) counts rape is hereby AFFIRMED with the MODIFICATION that the same appellant is also GUILTY beyond reasonable doubt of the crime of acts of lasciviousness as defined in the Revised Penal Code, in relation to Section 5, Article III of Republic Act No. 7610, and is hereby sentenced to suffer an indeterminate penalty of imprisonment from eight (8) years and one (1) day of prision mayor, as minimum to seventeen (17) years, four (4) months and (1) day of reclusion temporal, as maximum; and per previous ruling58 of this Court, must also indemnify the victim in the amount of P15,000.00 as moral damages and pay a fine in the same amount. SO ORDERED.

8. Ang vs. CA (RA 9262) 618 SCRA 592

G.R. No. 182835

April 20, 2010

RUSTAN ANG y PASCUA, Petitioner, vs. THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents. DECISION ABAD, J.: This case concerns a claim of commission of the crime of violence against women when a former boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it. The Indictment The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act or Republic Act (R.A.) 9262 in an information that reads: That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS) using his mobile phone, a pornographic picture to one Irish Sagud, who was his former girlfriend, whereby the face of the latter was attached to a completely naked body of another woman making it to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture thereby causing substantial emotional anguish, psychological distress and humiliation to the said Irish Sagud.1 The Facts and the Case The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became "on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him. Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and told Rustan to take on his responsibility to the other woman and their child. Irish changed her cellphone number but Rustan somehow managed to get hold of it and sent her text messages. Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-8084768. Irish replied to his text messages but it was to ask him to leave her alone. In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a picture of a naked woman with spread legs and with Irishs face superimposed on the figure (Exhibit A).2 The senders cellphone number, stated

in the message, was 0921-8084768, one of the numbers that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they were in Baguio in 2003 (Exhibit B).3 After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the picture he sent through the internet. One of the messages he sent to Irish, written in text messaging shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter."4 Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police station, he shouted at Irish: " Malandi ka kasi!" Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in information technology and computer graphics. He said that it was very much possible for one to lift the face of a woman from a picture and superimpose it on the body of another woman in another picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and the body belonged to just one person. Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake and the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained how this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson P900 seized from Rustan. For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003 and their relation lasted until December of that year. He claimed that after their relation ended, Irish wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that time (later his wife) was already pregnant, Irish walked out on him. Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort as she needed his help in selling her cellphone. When he arrived at the place, two police officers approached him, seized his cellphone and the contents of his pockets, and brought him to the police station. Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a prankster who was sending her malicious text messages. Rustan got the senders number and, pretending to be Irish, contacted the person. Rustan claims that he got back obscene messages from the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the obscene messages appeared to have originated from his cellphone number.

Rustan claims that it was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six pictures of a woman whom he identified as Irish (Exhibits 2 to 7).5 Michelle Ang (Michelle), Rustans wife, testified that she was sure Irish sent the six pictures. Michelle claims that she received the pictures and hid the memory card (Exhibit 8) that contained them because she was jealous and angry. She did not want to see anything of Irish. But, while the woman in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the face of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman in those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed. After trial, the RTC found Irishs testimony completely credible, given in an honest and spontaneous manner. The RTC observed that she wept while recounting her experience, prompting the court to comment: "Her tears were tangible expression of pain and anguish for the acts of violence she suffered in the hands of her former sweetheart. The crying of the victim during her testimony is evidence of the credibility of her charges with the verity borne out of human nature and experience."6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the violation of Section 5(h) of R.A. 9262. On Rustans appeal to the Court of Appeals (CA), 7 the latter rendered a decision dated January 31, 2008,8 affirming the RTC decision. The CA denied Rustans motion for reconsideration in a resolution dated April 25, 2008. Thus, Rustan filed the present for review on certiorari. The Issues Presented The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological distress, and humiliation on her in violation of Section 5(h) of R.A. 9262. The subordinate issues are: 1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is defined in R.A. 9262; 2. Whether or not a single act of harassment, like the sending of the nude picture in this case, already constitutes a violation of Section 5(h) of R.A. 9262; 3. Whether or not the evidence used to convict Rustan was obtained from him in violation of his constitutional rights; and 4. Whether or not the RTC properly admitted in evidence the obscene picture presented in the case. The Courts Rulings Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a woman with whom he has or had a sexual or dating relationship. Thus:

SEC. 3. Definition of Terms. As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. xxxx Section 5 identifies the act or acts that constitute violence against women and these include any form of harassment that causes substantial emotional or psychological distress to a woman. Thus: SEC. 5. Acts of Violence Against Women and Their Children. The crime of violence against women and their children is committed through any of the following acts: xxxx h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: xxxx 5. Engaging in any form of harassment or violence; The above provisions, taken together, indicate that the elements of the crime of violence against women through harassment are: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a "dating relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation where the parties are romantically involved over time and on a continuing basis during the course of the relationship. Thus: (e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (Underscoring supplied.) Here, Rustan claims that, being "romantically involved," implies that the offender

and the offended woman have or had sexual relations. According to him, "romance" implies a sexual act. He cites Websters Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He romanced her." But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it used the noun "romance" to describe a couples relationship, i.e., "a love affair."9 R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of acts committed by any person against a woman x x x with whom the person has or had a sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines "sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing of a common child." The dating relationship that the law contemplates can, therefore, exist even without a sexual intercourse taking place between those involved. Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety (away-bati), their romance cannot be regarded as having developed "over time and on a continuing basis." But the two of them were romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for nurturing a relationship of mutual trust and love. An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking place does not mean that the romantic relation between the two should be deemed broken up during periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when she could not reply to Rustans messages, he would get angry at her. That was all. Indeed, she characterized their three-month romantic relation as continuous.10 Two. Rustan argues that the one act of sending an offensive picture should not be considered a form of harassment. He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones. Rustan alleges that todays women, like Irish, are so used to obscene communications that her getting one could not possibly have produced alarm in her or caused her substantial emotional or psychological distress. He claims having previously exchanged obscene pictures with Irish such that she was already desensitized by them. But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It is doubtful if the woman in the

picture was Irish since her face did not clearly show on them. Michelle, Rustans wife, claimed that she deleted several other pictures that Irish sent, except Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2 to 7 had remained saved after she deleted the pictures. Later, however, she said that she did not have time to delete them. 11 And, if she thought that she had deleted all the pictures from the memory card, then she had no reason at all to keep and hide such memory card. There would have been nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for her to keep it for several years, given that as she said she was too jealous to want to see anything connected to Irish. Thus, the RTC was correct in not giving credence to her testimony.1avvphi1 Secondly, the Court cannot measure the trauma that Irish experienced based on Rustans low regard for the alleged moral sensibilities of todays youth. What is obscene and injurious to an offended woman can of course only be determined based on the circumstances of each case. Here, the naked woman on the picture, her legs spread open and bearing Irishs head and face, was clearly an obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish, who is not in the pornography trade, would be scandalized and pained if she sees herself in such a picture. What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat to post it in the internet for all to see. That must have given her a nightmare. Three. Rustan argues that, since he was arrested and certain items were seized from him without any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that the prosecution did not present in evidence either the cellphone or the SIM cards that the police officers seized from him at the time of his arrest. The prosecution did not need such items to prove its case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900 cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference. Actually, though, the bulk of the evidence against him consisted in Irishs testimony that she received the obscene picture and malicious text messages that the senders cellphone numbers belonged to Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to Lorentess Resort and he did.12 Consequently, the prosecution did not have to present the confiscated cellphone and SIM cards to prove that Rustan sent those messages. Moreover, Rustan admitted having sent the malicious text messages to Irish. 13 His defense was that he himself received those messages from an unidentified person who was harassing Irish and he merely forwarded the same to her, using his cellphone. But Rustan never presented the cellphone number of the unidentified person who sent the messages to him to authenticate the same. The RTC did not give credence to such version and neither will this Court. Besides, it was most unlikely for Irish to pin the things on Rustan if he had merely tried to help her identify the sender.

Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC). But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already waived such ground for objection.14 Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.15 In conclusion, this Court finds that the prosecution has proved each and every element of the crime charged beyond reasonable doubt. WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in CA-G.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008. SO ORDERED.
9. Southern Hemisphere vs. Anti-Terrorism Council (Void for vagueness rule) 632 SCRA 146

G.R. No. 178552

October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners, vs. ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents. DECISION CARPIO MORALES, J.: Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007, 1 signed into law on March 6, 2007. Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner Southern Hemisphere Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a

petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers3 who are also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554. The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by their respective officers,4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581. On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which were represented by their respective officers5 who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890. On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157. Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in the Southern Tagalog Region, 7 and individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581. Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine

National Police (PNP) Chief Gen. Oscar Calderon. The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements. The petitions fail. Petitioners resort to certiorari is improper Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear: Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied) Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction. The impropriety of certiorari as a remedy aside, the petitions fail just the same. In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.10 In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous. Petitioners lack locus standi Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.11 Anak Mindanao Party-List Group v. The Executive Secretary 12 summarized the rule on locus standi, thus: Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question

on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. [A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of. For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.) Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers. While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi. Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372. KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise claim that they have been branded as "enemies of the [S]tate."14 Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA 9372. BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the effects of

proscription without following the procedure under the law. 15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations. The Court cannot take judicial notice of the alleged "tagging" of petitioners. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge. 16 (emphasis and underscoring supplied.) No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging. The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members. While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America17 (US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as terrorist organizations.19 Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in

effect for three years now. From July 2007 up to the present, petitionerorganizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372. Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan,20 urged the government to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino Administration21 of resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied organizations. More important, there are other parties not before the Court with direct and specific interests in the questions being raised.22 Of recent development is the filing of the first case for proscription under Section 17 23 of RA 9372 by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group. Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges against them. In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina PagaduanAraullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26 The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been altered. Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged. Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law. The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with standing. 27 The IBP failed to

sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372. Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed. Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and are of "farreaching implications," without mention of any specific provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public. Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress, 28 whereas citizen standing must rest on direct and personal interest in the proceeding.29 RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law. It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key. Petitioners fail to present an actual case or controversy By constitutional fiat, judicial power operates only when there is an actual case or controversy. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.30 (emphasis and underscoring supplied.) As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after

full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.32 Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic: [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciable definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied) Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent events.34 Similarly, a petition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.35 The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for failure to cite any specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections,37 to rule on the religious freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants. The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum. The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues.38 Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."40 The plaintiffs therein filed an action before a federal court to assail the constitutionality of the material support statute, 18 U.S.C.

2339B (a) (1),41 proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian and political activities of two such organizations. Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable controversy.42 Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and existing one. Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function.43 Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.44 The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused.45 Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable. A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism 46 under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts. Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech. For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute. Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free speech cases. They

particularly cite Sandiganbayan.48 The Court clarifies.

Romualdez

v.

Hon.

Sandiganbayan47

and

Estrada

v.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for testing the validity of penal statutes." 50 It added that, at any rate, the challenged provision, under which the therein petitioner was charged, is not vague.51 While in the subsequent case of Romualdez v. Commission on Elections ,52 the Court stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense53 under the Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language.54 The two Romualdez cases rely heavily on the Separate Opinion 55 of Justice Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder. The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads: A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to

free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a

case must be examined in the light of the conduct with which the defendant is charged.56 (Underscoring supplied.) The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.58 As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.59 A "facial" challenge is likewise different from an "as-applied" challenge. Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.60 Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds. The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech, the exercise of which should not at all times be abridged.62 As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an " in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.63 The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an on-its-face invalidation of

penal statutes x x x may not be allowed."64 [T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him. 65 (Emphasis and underscoring supplied) It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases . By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants. The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.66 (Emphasis in the original omitted; underscoring supplied.) In restricting the overbreadth doctrine to free speech claims, the Court, in at

least two cases,67 observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment, 68 and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speechrelated conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected expression." 71 Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge against them While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face and in its entirety."72 It stressed that "statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant."73 American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity." For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty under law."75 In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes. In at least three cases,76 the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand. In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of "unlawful demand" in the definition of terrorism77 must necessarily be transmitted through some form of expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech. Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case78 illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than conduct. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible. [I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed . Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.79 (italics and underscoring supplied) Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1 IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety. In Holder, on the other hand, the US Supreme Court allowed the preenforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. WHEREFORE, the petitions are DISMISSED. SO ORDERED.
10. People vs. Sobusa (Voluntary Surrender) 610 SCRA 538

G.R. No. 181083

January 21, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee, vs. HERMINIGILDO SALLE SOBUSA, Accused-appellant. x--------------------------------------------------x DECISION LEONARDO-DE CASTRO, J.: On automatic review is the Decision1 dated July 27, 2007of the Court Appeals in CA-G.R. CR-HC. No. 00315 which affirmed with modification the Decision 2 dated October 1, 2003 of Branch 30, Regional Trial Court (RTC) of Iloilo City in Criminal Case No. 52407 convicting beyond reasonable doubt accused-appellant Herminigildo Salle Sobusa of qualified rape defined and penalized under Articles 266-A and 266-B of the Revised Penal Code, as amended. Consistent with our ruling in People v. Cabalquinto 3 and People v. Guillermo,4 this Court withholds the real name of the private offended party and her immediate family members as well as such other personal circumstance or information tending to establish her identity. The initials AAA represent the private offended party and the initials BBB and CCC refer to the mother and biological father, respectively, of the private offended party. DDD shall stand for the name of the elder sister of the mother of the private offended party. The information against accused-appellant reads: That sometime, a few days before the Holy Week of the year 2000, in the Municipality of San Miguel, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lust and lewd design, by means of force and intimidation, did then and there willfully, unlawfully and feloniously did lie and succeed in having carnal knowledge of [AAA], his step-daughter, a minor, ten (10) years of age, against her will and consent.5 Accused-appellant pleaded not guilty on his arraignment. 6 The pre-trial conference of the parties followed. The Pre-Trial Order 7 dated January 29, 2001, issued by the RTC, contains the respective admissions of the parties as follows:

ADMISSION: 1. The defense admits that Herminigildo Sobusa is the same person accused in this case. 2. The defense admits the identity of the offended party [AAA] as the stepdaughter of the accused. 3. The accused admits that the mother of the complainant and the accused are married. 4. The accused admits that the complainant is the daughter of the wife of the accused. 5. That the offended party [AAA] is a minor, ten (10) years of age, at the time of the incident a few days before the Holy Week of the year 2000. 6. The defense admits the existence of the Medico-Legal Certificate of [AAA] dated May 30, 2000 issued by Dr. Leah D. Cambronero-M.D. OBGyne, Western Visayas Medical Center, Mandurriao, Iloilo City. 7. The defense admits the existence of the entries of the Police Blotter of the PNP Station San Miguel, Iloilo regarding the aforesaid rape incident. 8. The prosecution admits that [AAA] was under the custody of her auntie at Santa Barbara, Iloilo, a few weeks before the alleged incident. The trial court summarized the evidence in chief presented by the parties during the trial which we quote as follows: EVIDENCE FOR THE PROSECUTION The private complainant in this case is [AAA], an 11 year-old x x x. She is the daughter of [BBB] and [CCC] out of wedlock. She was born on October 3, 1989 as evidenced by her Certificate of Live Birth. Her mother, BBB, was married to herein accused Herminigildo Sobusa x x x as shown by their [Certificate] of Marriage. Accused Sobusa is a widower with children and working as a security guard of the Philippine National Bank. After the marriage of her mother and the accused, she lived with her grandmother x x x. When her grandmother died in October, 1999, she lived with her mother and stepfather, herein accused Herminigildo Sobusa. However, when her mother BBB left for Taiwan in November, 1999, she was left by her mother under the custody of her [aunt DDD], the elder sister of her mother in XXX. She transferred to the house of her [aunt DDD] in December, 1999, and she stayed there for only one month and a half because her stepfather wrote her mother a letter that she was always sick, thus, in February, 2000, she was transferred by her [aunt DDD] to the house of her stepfather, Herminigildo Sobusa, in XXX. She was only then in Grade IV x x x. She lived in the house of her stepfather in XXX, until April, 2000, only because before the Holy Week of the year 2000 (April 17 to 21, 2000), she was raped, according to her, by herein accused Herminigildo Sobusa. When she was raped, she narrated the following story:

Sometime before April 17, 2000, at about a quarter of nine in the evening while she was sleeping, she was awakened when she felt that somebody was mashing her whole body. When she woke up, she saw her stepfather whom she called as her papa (referring to accused Sobusa), as the one mashing her whole body. Accused Sobusa then immediately covered her mouth by using his palm. She did not also shout because [she] was afraid of the accused. Thereafter, accused undressed himself and pulled down her shorts with her panty to her knees and inserted his penis into her (complainant) vagina and made a push and pull movement. While doing these acts, accused was lying on the complainants back while the latter was lying face down. Accused also let her lie on her back, mashed her whole body and kissed her, and thereafter, he (accused) stood up and went to the comfort room. She did not notice something coming out from the accuseds sex organ. She resisted to free herself but to no avail. According to her (complainant), there was only a slight penetration because she did not feel the pain but she was very sure that what was inserted into her vagina was the penis of the accused and not his finger because his fingernails were sharp and pointed and besides the penis of the accused is bigger in size than the finger of the accused. She did not feel the pain although she has not yet experienced having sexual intercourse with a man. She was very sure that it was the accused who raped her because the accused also let her lie on her back, and also because of the reflection of the light in her room. After doing said sexual act, complainant pulled her pillow and placed it between her thighs and the following morning, she discovered that the pillow was wet with bloodstains. She then told her papa (referring to accused) about the bloodstains but the accused told her just to keep quiet because he will just wash the pillow and the panty. At first, she did not tell anybody about it, however, her Tita Bebing, the half sister of her papa (accused), overheard the same. Upon inquiry by her Tita Bebing, she told her about the incident but her Tita told her just to keep quiet. In May 2000, however, she also told her two friends x x x about the incident that happened to her and her friends advised her to tell everything to her [aunt DDD] which the complainant did. Thereafter, they reported the incident to the barangay captain and the latter also reported the same to the Municipal Hall x x x and a warrant was issued for the arrest of the accused. xxxx Dra. Ma. Theresa Cedullo x x x a resident physician assigned at the OB-Gyne Department, Western Visayas Medical Center, Mandurriao, Iloilo City (government hospital), and currently in her fourth year residency acting as Chief and Senior Resident of the OB-Gyne Dept., testified that Dr. Leah Cambronero, the physician who examined herein complainant [AAA], at the time of her examination on the victim, was a Medical Officer IV of the Department of Health, Western Visayas Medical Center (OB-Gyne Dept.). However, after she graduated from her residency training, she resigned from the WVMC and engaged in private practice in Puerto Princesa Palawan. She identified the Medico Legal Certificate issued by Dr. Leah Cambronero as

well as the signature and findings appearing therein. The findings and/or diagnosis appearing in said Medico Legal Certificate is hereunder quoted as follows: xxxx "IMPRESSION: INCOMPLETE OLD HEALED HYMENAL LACERATION AT 10 & 12 OCLOCK POSITION, FUNGAL INFECTION." The doctor further explained that the findings which says "old healed laceration at 10 & 12 oclock positions" means that there is a presence of hymenal laceration, however, it does not traverse to the whole length of the hymen, and the same was no longer bleeding. She further added that the old healed hymenal laceration could have been inflicted on the victim a month or more prior to the date of the examination conducted by Dr. Cambronero, depending however on the healing process of the patient. This incomplete old healed laceration according to the witness could be caused by trauma, like a hard penis used in the area, blood clots during menstruation, by manipulation on the area either by the child herself or by another person or by the use of other objects. In this case, there is a possibility that the hymenal laceration was caused by trauma through the forcible insertion of a stiff or hard penis into the vagina of the victim. According to the doctor, the introitus of the victim admits one finger with difficulty which means that the patient has not been able to give birth yet. Because of the presence of numerous pus cells, she added, although the patient was not subjected to urinalysis, this signifies that there was fungal infection. Hygiene is one factor which may cause fungal infection and also estrogenic infection which would be transferred to the victim by another source. Hence, it is possible that this fungal infection suffered by the victim was caused by sexual intercourse committed on the victim. xxxx [DDD], the elder sister of [BBB], the mother of herein complainant, corroborated the testimony of [AAA] on some material aspects x x x. On April 25, 1997, her sister [BBB], was married to herein accused Herminigildo Sobusa as evidenced by the Certificate of Marriage x x x but nobody in their family had attended said marriage since their family did not approve of said marriage considering that accused Sobusa is a drunkard and has children with his previous wife. In fact she only knew about said marriage in 1999. According to her, when her sister left for Taiwan and Hongkong in 1999 and 2001, respectively, [AAA] was left under her custody by her sister because among her brothers and sisters, she was the only one left living in XXX. Thus, in December, 1999, [AAA} lived with her in XXX. However, herein complainant only stayed with her for only two months because her sister, [BBB] wrote her a letter to transfer [AAA] to XXX, thus, in the middle of February 2000, complainant transferred to XXX, to the house of his stepfather Herminigildo Sobusa. Complainant lived with her stepfather together with Pane and Bebe, the stepsisters of the accused, the grade IV son of the accused with another woman and the three-year old son of the accused with [BBB].

On May 23, 2000, herein complainant visited her in their house in XXX, and that was the time the complainant told her that she was raped by accused Sobusa. She then confronted accused Sobusa about the incident in the afternoon of the same day but the latter denied having raped [AAA]. She then told her cousin Anselma Sarisola and their relatives about the incident and they decided to have [AAA] examined. They reported the incident to the Police Station of San Miguel, Iloilo, as evidenced by the excerpt of the Police Blotter. They also referred this case to the DSWD Lingap Center in Bo. Obrero which took [AAA] into custody x x x. xxxx SPO3 Romeo Villasis, Police Investigator of San Miguel, Iloilo, identified the excerpt of the Police Blotter and explained that it was PO3 Brion, Women and Child Desk Officer who made the entry of the incident in the official blotter book, however, he based his certification on another logbook also entered by PO3 Brion x x x. Nevertheless, both the prosecution and the defense stipulated that the entry which says: "child, female and temporarily residing at XXX" also appeared in the official blotter book presented by the witness. EVIDENCE FOR THE ACCUSED: Accused Herminigildo Sobusa, 43 years old, married and a resident of Sta. Teresa, San Miguel, Iloilo, and a security guard assigned at the Philippine National Bank, Iloilo Branch, on his behalf, testified as follows: xxxx He only came to know about the filing of this Rape case against him in May, 2000 and upon knowing this, he voluntarily surrendered to SPO1 Juanito Molinas, Jr. of San Miguel PNP and he was placed in the lock up cell. He vehemently denied having raped [AAA] because being employed as Security Guard of the PNB, Iloilo Branch, his duty was always during night time, from 3:00 oclock in the afternoon to 11:00 oclock in the evening or from 11:00 oclock in the evening until 7:00 oclock the following morning. In the months of March and April 2000, according to him, he was on night shift duty everyday, and he also had Daily Time Records showing the schedule of his duties as security guard. He further stated that this case was only instigated by [DDD], sister of his wife [BBB], their aunts and cousins because according to them, he (accused) is a gambler, a drunkard and he had another family and they wanted to separate them. However, he also admitted that prior to the filing of this case, he and [DDD] were also in good terms and that he used to drink every night but only to relieve his tiredness. He likewise admitted that he gambled using his wifes allotment but only when there were special occasions. Accused further testified that he does not know that herein complainant suffered hymenal lacerations and if ever [AAA] suffered lacerations, it does not mean that he raped her because sometimes herein complainant goes home late at night, and besides she had a boyfriend who is older than her, and there is a possibility that his boyfriend was the one who caused her lacerations. He does not know the

name of the complainants boyfriend but he only met him when he (accused) was on his way to report for duty since he was following the complainant. He only came to know about the complainants boyfriend around five (5) to six (6) months prior to the filing of this case against him. Furthermore, the [accused] stated that [AAA] used to sleep in one room with Gil, his youngest son with his first wife who was 11 years old in the year 2000, while his stepsister and his son with [BBB] were sleeping in the other room, and he sleeps in the sala. Everytime the complainant slept in the witness house, his son Gil was sleeping with her in one room and he also tolerated the same because he wanted them to treat each other as brother and sister. xxxx The testimony of the accused was corroborated by his aunt Margarita Sobusa also a resident of Roxas St., San Miguel, Iloilo, which is about five kilometers from the house of accused Sobusa. She testified that the family of [BBB] was not in good terms with the family of Herminigildo Sobusa and she knew this fact because Herminigildo Sobusa also shared his problem with her. According to her, the family of [BBB] does not favor her marriage to the accused Herminigildo Sobusa because the latter had another family, and the money sent by [BBB] to him was spent by the accused in his gambling activity x x x. The fact of Sobusas surrender to the police authorities was testified to by SPO1 Juanito Molinos, a PNP member assigned at the San Miguel Police Station. According to this witness, accused Herminigildo Sobusa, accompanied by his wife, voluntarily surrendered to him on June 2, 2000 because he was on duty during that time x x x.8 [Citation of documentary exhibits omitted.] On rebuttal, the prosecution presented evidence to refute accused-appellants claim that he was on duty every night on the month of April of 2000 and to show that AAA was raped sometime on April 11 to 15, 2000. The trial courts gist of the rebuttal evidence for the prosecution follows: To rebut the testimony of the accused regarding his alleged night shift duty, the prosecution presented as rebuttal witness Severino Pago, Chief Security assigned at the PNB main branch. He testified that as Chief Security Guard of the PNB main branch, it was his duty to supervise and discipline the security guards under him, one of whom was herein accused Herminigildo Sobusa. The latter was under him since May, 1994, until this case was filed against him in the year 2000. xxxx According to the witness, he first checked the Daily Time Records with the time cards if they coincide with each other and then submitted the same to Mr. Valderama. He prepared and kept the daily time records of the security guards under him and if ever a guard reported for duty during Saturdays and Sundays, said overtime work was also being recorded. According to him accused Sobusa reported for night duty on March 1-11, 2000; March 17-20, 2000; April 17-20, 2000, and on April 23, 2000, while, on March 13-19, 2000; March 26, 31, 2000; April 8-16, 2000; April 24-28, 2000, he reported for day duty, and on April 21-22,

2000 (Holy Thursday and Good Friday, respectively) and April 28-31, 2000 he had not reported for duty. Upon inquiry by the court as to the specific time in and time out of accused Sobusa from April 10-16, 2000, the daily time records of the accused for the aforementioned dates are hereunder indicated: April 10, 2000 7:00 A.M. 3:00 P .M.; April 11, 2000 6:42 A.M. 3:09 P .M.; April 12, 2000 7:12 A.M. 3:05 P .M.; April 13, 2000 6:53 A.M. 3:10 P .M.; April 14, 2000 6:53 A.M. 3:05 P .M.; April 15, 2000 accused was not on duty; April 16, 2000 7:15 A.M. 3:45 P .M. [AAA], on rebuttal, testified that she was not very sure of the exact date when she was raped by accused Sobusa but as far as she can remember, it was only a few days before the Holy Week. According to the witness the Holy Week is composed of seven (7) days and the same starts on April 17 to 23, 2000, hence, the rape according to her was committed a few days before April 17, 2000. However, when asked by the court regarding the date when she was allegedly raped, the witness stated that she was sure that she was raped between the dates April 11 to 15, 2000.9 [Citation of documentary exhibits omitted.] The trial court rendered judgment finding accused-appellant guilty beyond reasonable doubt of the crime charged. The dispositive portion of the decision reads: WHEREFORE, based on the foregoing, the court finds the accused Herminigildo Sobusa Guilty Beyond Reasonable Doubt for the crime of Rape committed [against] the person of his stepdaughter [AAA] under Art. 266-A, par. (1) of the Revised Penal Code. The court also finds that the crime of Rape committed by the accused Herminigildo [S]obusa falls within the aggravating/qualifying circumstances as stated in par. (1) of Art. 266-B of the Revised Penal Code. Considering that the crime of Rape falls under the aforementioned aggravating/qualifying circumstances under par. (1), the court hereby imposes on the accused Herminigildo Sobusa the supreme penalty of DEATH. The accused is further directed to indemnify the complainant [AAA] for the offense committed on her person in the amount of P75,000.00 and the amount of P50,000.00 as moral damages.10 The appeal was directly filed before this Court. The accused-appellant filed his Brief11 on October 20, 2004 while the plaintiff-appellee filed its Brief 12 on March 30, 2005. In a Resolution13 dated July 19, 2005, we transferred this case to the Court of Appeals for appropriate action conformably with our ruling in People v. Mateo.14

The appellate court affirmed with modification the judgment of the trial court. The accused-appellant was sentenced to suffer a reduced penalty of reclusion perpetua, ordered to pay an increased amount of moral damages, and further ordered to pay exemplary damages in favor of the private offended party, thus: WHEREFORE, premises considered, the Decision of the Regional Trial Court dated October 1, 2003 finding accused-appellant Herminigildo Sobusa guilty beyond reasonable doubt of qualified rape is AFFIRMED with MODIFICATION that the penalty of death imposed on accused-appellant is reduced to reclusion perpetua. He is also ordered to pay private complainant [AAA] (to be identified through the Information in the instant case), the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages. Costs against accused-appellant.15 This case was then elevated to us for a final review. In a Resolution 16 dated February 13, 2008, we required the parties to submit their respective supplemental briefs. The parties, however, manifested that they have exhausted their arguments before the courts below and, thus, will no longer file any supplemental brief.17 Accused-appellant insists on the same error he raised before the appellate court: THAT THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT. Accused-appellant asserts that the charge of rape against him was merely prodded by AAAs relatives who were not in good terms with him as they did not approve of his marriage with AAAs mother. He alleges that he treated his stepdaughter, AAA, as his very own daughter and denies having raped her. Accused-appellant also points out that he could not have committed the crime imputed to him because, as a security guard, he often worked on the night shifts from 3:00 p.m. until 11:00 p.m. or from 11:00 p.m. until 7:00 a.m. of the following day. We affirm the conviction of the accused-appellant. There are three settled principles in reviewing evidence on rape cases: (1) an accusation for rape can be made with facility, it is difficult to prove but more difficult for the accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense.18 The accused-appellant was convicted beyond reasonable doubt of the crime of qualified rape on the basis of the following: (1) AAAs credible testimony concerning the rape incident; (2) AAAs positive identification of accusedappellant as the one who raped her; (3) physical evidence consistent with AAAs assertion that she was raped; and (4) the absence of ill motive on AAAs part in filing the charge.

Testimonies of child victims are given full weight and credit, for when a woman or a girl-child says that she has been raped, she says in effect all that is necessary to show that rape was indeed committed. Youth and immaturity are generally badges of truth and sincerity.19 AAAs testimony that she was raped by the accused-appellant is highly trustworthy not only because of the fact that she was merely a young lass below twelve years of age at the time she testified before the trial court who would not concoct a sordid tale against his stepfather whom she endearingly calls "papa" but more so because of her candid, positive, direct, and consistent narration of how her stepfather sexually abused her. She vividly recounted that she was awakened one night when she felt someone touching her body. AAA identified the aggressor as the accused-appellant who immediately covered her mouth with his hand. The accused-appellant then undressed himself, pulled AAAs shorts and panty, and unleashed his bestial desire upon her until his lust was satiated. AAA distinctly and extensively related the details during and after the rape incident as follows: PROS. CABALUM: Q: Now, before the Holy Week, before April 17, 2000 while you were sleeping in the house of your stepfather can you tell this Honorable [Court] if there was any unusual incident that happened when you were there sleeping? A: Yes, maam. Q: What was the incident all about? A: While I was sleeping I felt that somebody was mashing the whole of my body. Q: Now, by the way, where were you sleeping at that time because you said, you have been staying and sleeping in the house of your stepfather. In what part of the house were you sleeping at the house of your stepfather? A: Inside the room. xxxx Q: Now in that room you said, you were sleeping that night could you tell us, if [you had] a companion? A: No, maam. Q: You mean to say, you were alone in that room? A: Yes, maam. xxxx Q: Now, how about what time was that when you said that somebody was mashing your whole body while you were sleeping in that room in April of 2000? A: Around quarter to nine in the evening. Q: Then what happened after you said, you felt that while sleeping

somebody was mashing your whole body? A: I was awakened. Q: And after you were awakened what happened? A: I saw my papa. Q: You said, after you woke up you saw your stepfather or your papa? A: He covered my mouth. Q: Who covered your mother? A: My stepfather. Q: Your stepfather which you called papa? A: Yes maam. xxxx Q: Now, this Herminigildo Sobusa is the same person whom you are calling papa or your stepfather? A: Yes maam. Q: And now you said, you saw your father and he covered your mouth. What did he use in covering your mouth? A: His palm. xxxx Q: And after he covered your mouth, now what did he do? A: He pulled my shorts. Q: He pulled your shorts and after he pulled your shorts what happened? A: He inserted his penis into my vagina. Q: Now, before he inserted his penis into your vagina you said, he [took] off your shorts. Now how about your panty you had no panty that night? A: I [had] a panty, maam. Q: How about your panty, what did he do with your panty? A: He did not completely [pull] my panty he just pulled it down up to my knees. Q: You mean to say, he pulled your panty down up to your knees? A: Yes maam. Q: And now could you describe to us what was the appearance of your papa when he pulled your shorts and then released your panty up to your both knees and you said he inserted his penis into your vagina was he already undressed or with his complete clothing? A: He has his shirt on, but he had no more shorts and brief. Q: Meaning to say, that was the time when you open your eyes because you

said you were awakened because somebody was mashing you and identified him as your stepfather? A: Yes maam. Q: So, meaning when he covered your mouth he undressed himself and after he undressed you also? A: Yes maam. Q: And what was your position when you said he inserted his penis into your vagina? A: I was [lying] face down. Q: Now, you said [you were lying] face down and what happened because [you were lying] face down. Could you tell this Honorable Court, if there [was] any penetration? A: Its slight penetration. Q: When you say slight penetration did you not feel the pain? A: I [did] not feel any pain. Q: After he inserted his penis [in] your vagina that did he do? A: He did a push and pull action. Q: He did a push and pull action for how long? xxxx A: Not [too] long. Q: During those times that your stepfather was doing that act to you having sexual intercourse with you did you not struggle hard in order to free yourself? A: I was resisting. Q: You were resisting. Now, were you able to resist? A: I was not able to free myself? Q: Considering that your position was [lying] face down, what was the position of your stepfather when he was doing that sexual intercourse with you? A: He was [lying] on my back. xxxx Q: Now, aside from that fact that your stepfather do, what other position did your stepfather do when he was having sexual intercourse with you? A: He changed my position by letting me lie down on my back. Q: And what was his position at that time while he was doing that intercourse with you while [you were lying] at your back? A: He was in my front.

Q: What do you mean by that he was in your front? A: He was in my front kissing me. Q: After kissing you what did he do? A: He was mashing all the parts of my body. Q: And after mashing all the parts of your body what did he do? A: He stood up. xxxx Q: Now, you did not complain to your stepfather why he was doing that to you? A: No maam. Because I dont know of what he was doing. Q: Now, in the following morning what happened after you woke up? A: I felt that my pillow which I inserted between my thighs was wet and I lift under the fluorescence lamp and I saw bloodstains. Q: So what did you do after you saw bloodstains? A: I told papa that I was bleeding. Q: And what was the answer of your father? A: He told me that I will keep quiet because he will wash. Q: He will wash what? A: He will wash my panty and my pillow. Q: Because of that you [kept] quiet. You did not tell anybody inside your house of what did your papa do to you that evening? A: When I told papa that I was bleeding there was somebody who heard it. Q: And who was that somebody who heard it? A: My tita Bebing, maam. Q: Who is this tita Bebing of yours? A: She is the half-sister of my stepfather. Q: And what did your tita Bebing tell you because you said she heard you when you [said] that you were bleeding? A: She comes to me in the following morning. Q: And what did you tell her? A: I told her that papa raped me. Q: And what was the reaction of your tita Bebing who is the half-sister of your stepfather? A: She told me to keep quiet because mama will get angry at her.20 Jurisprudence is likewise settled that when the rape victims testimony is

corroborated by the physicians finding of penetration, there is sufficient foundation to conclude the existence of the essential requisite of carnal knowledge. Laceration, whether healed or fresh, is the best physical evidence of forcible defloration.21 In this case, the medical finding of AAAs old healed hymenal lacerations is consistent with her testimony that her private parts bled after she was sexually ravished. The prosecution successfully established the qualifying circumstance of relationship of AAA with the accused-appellant as well as AAAs minority. AAA is the stepdaughter of the accused-appellant in view of the marriage of AAAs mother with accused-appellant.22 The birth certificate of AAA, on the other hand, proves that she was only 10 years old on the month of April of the year 2000 or at the time the rape was committed.231avvphi1 It is elementary that the bare denial of the accused-appellant of his commission of the crime charged as well as his contention that AAA could not have seen him as she was lying with her face down when she was raped cannot overcome the positive, clear, and detailed testimony of AAA that she saw the accused-appellant when she was roused from sleep when he touched her body and then subsequently raped her. Accused-appellants imputation of ill motive on the part of AAAs family in the filing of this case is bereft of convincing evidence. This Court has consistently held that no family member would expose a fellow family member to the ignominy of a rape trial or to the shame and scandal of having to undergo such a debasing ordeal merely to satisfy their alleged motive if the charge is not true. 24 In this case, we are not inclined to believe that the relatives of AAA would subject the latter to the humiliating and agonizing experience of a public trial just to falsely accuse a person of the commission of the crime of rape. Nonetheless, ill motive is not an element of the crime of rape and the attribution of ill motive in this case cannot overturn the well-established essential elements of the crime charged. The alibi of the accused-appellant is similarly untenable. It is well-settled that alibi cannot be sustained where it is not only without credible corroboration but also does not, on its face, demonstrate the physical impossibility of the presence of the accused at the place of the crime or in its immediate vicinity at the time of its commission.25 Aside from the fact that AAA positively testified that the accused-appellant was her assailant and that she was raped a few days before the start of the Holy Week of the year 2000 or sometime on April 11 to 15, 2000, the daily time records of the accused-appellant easily belie his claim that he worked on the night shifts from April 10 to 16, 2000. Accused-appellants attempt to mitigate his culpability by claiming that he voluntarily surrendered to the police immediately after being informed of the charges against him is futile. Jurisprudence requires that a surrender, to be voluntary, must be spontaneous and must clearly indicate the intent of the accused to submit himself unconditionally to the authorities 26 either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense incidental to his search and capture. 27 The following requisites should

likewise be present: (1) the offender had not been actually arrested; (2) the offender surrendered himself to a person in authority or to the latters agent; (3) the surrender was voluntary; and (4) there is no pending warrant of arrest or information filed.28 In this case, the accused-appellant surrendered only after having been informed of the charge of rape against him or about two months from the commission of the alleged crime. 29 He even denied the said charge upon his purported surrender. The alleged surrender, therefore, does not qualify as a mitigating circumstance.30 The accused-appellant was duly charged and convicted of the crime of rape under Article 266-A of the Revised Penal Code, as amended, and qualified by AAAs minority and relationship with him. The appellate court, therefore, correctly ordered accused-appellant to pay the victim the amount of P75,000.00 as civil indemnity and another P75,000.00 as moral damages consistent with current jurisprudence on qualified rape. However, the exemplary damages in the amount of P25,000.00 should be increased to P30,000.00 in line with recent case laws.31 WHEREFORE, in view of the foregoing, the Decision dated July 27, 2007 of the Court of Appeals in CA-G.R. CR-HC. No. 00315 which affirmed with modification the Decision dated October 1, 2003 of Branch 30, Regional Trial Court of Iloilo City in Criminal Case No. 52407 convicting beyond reasonable doubt accusedappellant Herminigildo Salle Sobusa of qualified rape, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay civil indemnity and damages, is hereby AFFIRMED with MODIFICATION that accused-appellant is ordered to pay the victim exemplary damages in the increased amount of P30,000.00 in addition to P75,000.00 as civil indemnity and P75,000.00 as moral damages, plus interest on all damages awarded at the legal rate of 6% from this date until fully paid. No costs. SO ORDERED.
11. Interorient Maritime vs. Remo (Quitclaims, Labor) 622 SCRA 237

G.R. No. 181112

June 29, 2010

INTERORIENT MARITIME ENTERPRISES, INC., INTERORIENT ENTERPRISES, INC., and LIBERIA AND DOROTHEA SHIPPING CO., LTD., Petitioners, vs. LEONORA S. REMO, Respondent. DECISION NACHURA, J.: Before this Court is Petition for Review on Certiorari 1 under Rule 45 of the Rules of Civil Procedure, seeking the reversal of the Court of Appeals (CA) Decision 2 dated September 26, 2007, which reversed and set aside the resolution 3 of the National Labor Relations Commission (NLRC) dated June 23, 2006.

This case stems from the claim for death benefits filed by respondent Leonora S. Remo (respondent), surviving spouse of Lutero Remo (Lutero), against petitioners Interorient Maritime Enterprises, Inc. (Interorient), Interorient Enterprises, Inc., and Liberia and Dorothea Shipping Co., Ltd. (petitioners). Culled from the records, the facts are as follows: Lutero was deployed by Interorient on November 10, 1998 to serve as CookSteward on board the foreign principals vessel, "M/T Captain Mitsos L" (the vessel), under a Philippine Overseas Employment Administration (POEA) Standard Employment Contract (SEC) with a duration of 12 months and a monthly salary of US$400.00.4 Respondent alleged that Lutero was repeatedly contracted and deployed by Interorient for employment on board various vessels of its principals from September 1994 to April 1999; 5 that prior to his last employment contract on October 29, 1998, he underwent a pre-employment medical examination (PEME) and was declared fit to work; that on his fifth month of employment, while on board the vessel, Lutero experienced severe abdominal and chest pains, fainting spells and difficulty in breathing; that he was brought to a hospital in Dubai where he was confined for one (1) week until his repatriation on April 19, 1999; that he was diagnosed with atrial fibrillation and congestive heart failure; that within 2-3 days from arrival, Lutero reported to Interorient and requested that he be given a post-employment medical examination and assistance; that Interorient assured Lutero that he would be given a medical examination and assistance which did not, however, materialize; that Lutero, after waiting for about two weeks for the examination, went home to his province but, two weeks thereafter, he was again confined in a hospital after experiencing another episode of difficulty in breathing, abdominal and chest pains, dyspnea, and irregular cardiac breathing; that for the period of May 3 to December 9, 1999, he underwent treatment for the ailment he contracted during his overseas employment; that Lutero was diagnosed with Chronic Atrial Fibrillation, Cardiomegaly, Essential Hypertension, and Schistosomiasis; 6 that sometime thereafter, he received notice from Interorient, requiring him to report as there was supposedly a vessel available for him to join; that he tried to persuade his attending doctor, Dr. Efren Ozaraga (Dr. Ozaraga), to declare him fit to work because he wanted to resume his work, but the doctor refused; that Lutero reported to Interorient, but failed in his PEME; that on August 28, 2000, he died at the age of 47 of hypertensive cardio-vascular disease,7 leaving behind respondent and their three (3) children;8 that from the time of his discharge from the vessel, Lutero did not receive any sickness benefit or medical assistance from petitioners; and that respondent is entitled to death compensation as the death of her husband was due to an illness contracted during the latter's employment, as well as sickness benefit, moral and exemplary damages, and attorneys fees. Petitioners denied liability and averred that, at the time of his application, Lutero expressly declared in his application form that he did not, in the past and at that time, have any illness; that during his PEME, he answered "no" to the listed medical conditions and to the question if he was taking any medication; 9 that on the basis of his representation, he was declared fit to work and subsequently

commenced employment; that after his repatriation, Lutero reported to Interorients office on April 20, 1999, and when asked about the circumstances of his illness, he admitted that he had a preexisting ailment at the time of his application and deployment, and discharged petitioners from liabilities arising from said preexisting illness by virtue of his Acknowledgment 10 and Undertaking;11 that thereafter, nothing was heard from Lutero until February 2000, when he submitted to Interorient a medical certificate 12 of fitness to work issued by his private doctor, Dr. Ozaraga; that respondent was not entitled to her claims because Lutero died after the expiration of the term of the contract; that Lutero failed to disclose his preexisting illness at the time of his engagement; and that, following his repatriation, he acknowledged his preexisting illness. On January 13, 2004, the Labor Arbiter (LA) denied respondent's claims, holding that she was not entitled thereto because Luteros death did not occur during the term of the contract; that Lutero failed to disclose his medical condition prior to his deployment; and that he acknowledged his preexisting illness following his repatriation. Aggrieved, respondent appealed to the NLRC which, however, affirmed the LA's ruling. Undaunted, respondent went to the CA on certiorari, 13 alleging grave abuse of discretion on the part of the NLRC in not ruling that Lutero's death was due to an illness contracted during his employment, or that said employment contributed to the development of his illness. On September 26, 2007, the CA decided in favor of respondent, finding that the nature of Lutero's employment contributed to the aggravation of his illness. Invoking our rulings in Seagull Shipmanagement and Transport, Inc. v. NLRC 14 and Wallem Maritime Services, Inc. v. NLRC,15 the CA disposed of the case in this wise: WHEREFORE, the petition is GRANTED. The assailed Resolutions of the National Labor Relations Commission are REVERSED and SET ASIDE. Private respondents are ordered to pay, jointly and severally, the following amounts to petitioner for herself and in her capacity as guardian of her minor children: US$50,000.00 as death benefit; US$7,000.00 to each child under the age of twenty-one (21), as allowances; and US$1,000.00 as burial expenses. Costs against the private respondents. SO ORDERED.16 On October 15, 2007, petitioners filed their Motion for Reconsideration, 17 which was, however, denied by the CA in its Resolution18 dated December 20, 2007. Hence, this Petition based on the following grounds: 1) THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT RESPONDENT IS NOT ENTITLED TO DEATH BENEFITS UNDER THE POEA STANDARD EMPLOYMENT CONTRACT FOR THE DEATH OF HER HUSBAND OCCUR[R]ING ONE YEAR AFTER THE TERM OF HIS CONTRACT; 2) THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING

THAT RESPONDENT IS NOT ENTITLED TO DEATH BENEFITS UNDER THE POEA STANDARD EMPLOYMENT CONTRACT FOR THE DEATH OF HER HUSBAND AS THE LATTER'S DEATH WAS DUE TO [A] PREEXISTING ILLNESS[; and] 3) THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE RESPONDENT IS NOT ENTITLED TO DEATH BENEFITS UNDER THE POEA STANDARD EMPLOYMENT CONTRACT FOR THE DEATH OF HER HUSBAND AS THE LATTER ADMITTED CONCEALING HIS TRUE MEDICAL CONDITION AT THE TIME OF HIS PREEMPLOYMENT MEDICAL EXAMINATION.19 Petitioners rely on the findings of both the LA and the NLRC that the death of Lutero is not compensable because it happened outside the term of his contract. Petitioners claim that the medical certificate issued by Dr. Ozaraga, certifying that Lutero was already fit to resume work, belies respondent's assertion that Lutero continued to be ill after his repatriation until his death. Petitioners also rely on the undertaking executed by Lutero, stating that, before he joined the vessel, he already had hypertension, and that he took medication prior to his medical examination. Thus, petitioners submit that Lutero committed material misrepresentation, disqualifying him from claiming the benefits provided for under the POEA-SEC.20 On the other hand, respondent argues that petitioners failed to attach the pertinent documents and pleadings to the Petition, and that the petition raises factual issues in violation of Rule 45 of the Rules of Civil Procedure. Respondent asseverates that petitioners' stance that the employer is liable only if the death of the seafarer occurs exactly during the term of the contract violates the nature of the POEA-SEC and is contrary to the avowed policy of the State to accord utmost protection and justice to labor. Invoking our ruling in Wallem, 21 respondent maintains that "it is enough that the employment had contributed, even in a small degree, to the development of the disease and in bringing about (the seafarers) death." Respondent stresses that this Court allowed the award of death benefits in Wallem even if the seafarer therein died after the contract term. In the instant case, Lutero suffered a heart ailment while on board the vessel the illness manifested itself during the term of the contract and was the very reason of his repatriation. Respondent submits that Lutero died of a heart ailment which he incurred during the term of the contract, thus, making his death compensable. Respondent also denies that the heart ailment of Lutero was a preexisting illness because, while it is true that the PEME is not exploratory, the ailment would have been easily detected because Lutero had been continuously under petitioners' employ for almost four years. Lastly, respondent highlights her claim that Lutero, after his repatriation, immediately reported to Interorient and asked for post-medical examination and assistance, but none was given to him. She bewails the fact that, instead of the conduct of said examination, petitioners induced Lutero to execute the Acknowledgment and Undertaking, releasing petitioners from any liability.22 The ultimate issue in this case is whether the CA committed a reversible error in

rendering the assailed Decision. The Petition is bereft of merit. As a rule, only questions of law may be raised in and resolved by this Court on petitions brought under Rule 45 of the Rules of Civil Procedure, because the Court, not being a trier of facts, is not duty-bound to reexamine and calibrate the evidence on record. In exceptional cases, however, we may delve into and resolve factual issues when there is insufficient or insubstantial evidence to support the findings of the tribunal or court below, or when too much is concluded, inferred or deduced from the bare or incomplete facts submitted by the parties, or when the lower courts come up with conflicting positions.23 This case constitutes an exception inasmuch as the CA's findings contradict those of the LA and the NLRC. Section 20(B)1 of the Standard Terms and Conditions Governing the Employment of Filipino Seafarers On-Board Ocean-Going Vessels made pursuant to POEA Memorandum Circular No. 055-96 and Department Order No. 33, Series of 1996, clearly provides: The liabilities of the employer when the seafarer suffers injury or illness during the term of his contract are as follows: xxxx 2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated. However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of his disability has been established by the company-designated physician. 24 For disability claims, the post-employment medical examination is meant to verify the medical condition of the seafarer when he signs off from the vessel. 25 On the other hand, in the cases involving death compensation, our rulings in Gau Sheng Phils., Inc. v. Joaquin26 and Rivera v. Wallem Maritime Services, Inc. 27 stressed the importance of a post-employment medical examination or its equivalent, i.e., it is a basis for the award of death compensation. In these cited cases, however, death benefits were not awarded because the seafarers and/or their representatives failed to abide by the POEA-SEC wherein it was stated that the seafarer must report to his employer for a post-employment medical examination within three working days from the date of arrival, otherwise, benefits under the POEA-SEC would be nullified.28 In light of this ruling, the following questions may be asked: What if the seafarer reported to his employer but despite his request for a post-employment medical examination, the employer, who is mandated to provide this service under POEA Memorandum Circular No. 055-96, did not do so? Would the absence of a postemployment medical examination be taken against the seafarer?

Both parties in this case admitted that Lutero was confined in a hospital in Dubai for almost one week due to atrial fibrillation and congestive heart failure. Undeniably, Lutero suffered a heart ailment while under the employ of petitioners. This fact is duly established. Respondent has also consistently asserted that 2-3 days immediately after his repatriation on April 19, 1999, Lutero reported to the office of Interorient, requesting the required postemployment medical examination. However, it appears that, instead of heeding Lutero's request, Interorient conveniently prioritized the execution of the Acknowledgment and Undertaking which were purportedly notarized on April 20, 1999, thus leaving Lutero in the cold. In their pleadings, petitioners never traversed this assertion and did not meet this issue head-on. This self-serving act of petitioners should not be condoned at the expense of our seafarers. Therefore, the absence of a post-employment medical examination cannot be used to defeat respondents claim since the failure to subject the seafarer to this requirement was not due to the seafarers fault but to the inadvertence or deliberate refusal of petitioners. Moreover, we attach little evidentiary value to the Acknowledgment and Undertaking purportedly executed by Lutero, which is in the nature of a waiver and/or quitclaim. As a rule, quitclaims, waivers, or releases are looked upon with disfavor and are largely ineffective to bar claims for the measure of a worker's legal rights.29 To be valid, a Deed of Release, Waiver and/or Quitclaim must meet the following requirements: (1) that there was no fraud or deceit on the part of any of the parties; (2) that the consideration for the quitclaim is credible and reasonable; and (3) that the contract is not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law.30 Courts have stepped in to annul questionable transactions, especially where there is clear proof that a waiver, for instance, was obtained from an unsuspecting or a gullible person; or where the agreement or settlement was unconscionable on its face. A quitclaim is ineffective in barring recovery of the full measure of a worker's rights, and the acceptance of benefits therefrom does not amount to estoppel. Moreover, a quitclaim in which the consideration is scandalously low and inequitable cannot be an obstacle to the pursuit of a worker's legitimate claim.31 Based on the foregoing disquisition, we find the Acknowledgment and Undertaking to be void, as contrary to public policy. Other than the fact that the Acknowledgment and Undertaking did not provide for any consideration given in favor of Lutero, it is likewise evident that the terms thereof are unconscionable and that petitioners merely wangled them from the unsuspecting Lutero who, at that time, just arrived in the country after having been confined in a hospital in Dubai for a heart ailment. It is a time-honored rule that in controversies between a laborer and his employer, doubts reasonably arising from the evidence or from the interpretation of agreements and writings should be resolved in the former's favor in consonance with the avowed policy of the State to give maximum aid and protection to labor.32 This principle gives us even greater reason to affirm the

findings of the CA which aptly and judiciously held: It was established on record that before the late Lutero Remo signed his last contract with private respondents as Cook-Steward of the vessel "M/T Captain Mitsos L," he was required to undergo a series of medical examinations. Yet, he was declared "fit to work" by private respondents company designatedphysician. On April 19, 1999, Remo was discharged from his vessel after he was hospitalized in Fujairah for atrial fibrillation and congestive heart failure. His death on August 28, 2000, even if it occurred months after his repatriation, due to hypertensive cardio-vascular disease, could clearly have been work related. Declared as "fit to work" at the time of hiring, and hospitalized while on service on account of "atrial fibrillation and congestive heart failure," his eventual death due to "hypertensive cardio-vascular disease" could only be work related. The death due to "hypertensive cardio-vascular disease" could in fact be traced to Lutero Remos being the "Cook-Steward." As Cook-Steward of an ocean going vessel, Remo had no choice but to prepare and eat hypertension inducing food, a kind of food that eventually caused his "hypertensive cardio-vascular disease," a disease which in turn admittedly caused his death. Private respondents cannot deny liability for the subject death by claiming that the seafarers death occurred beyond the term of his employment and worsely, that there has been misrepresentation on the part of the seafarer. For, as employer, the private respondents had all the opportunity to pre-qualify, thoroughly screen and choose their applicants to determine if they are medically, psychologically and mentally fit for employment. That the seafarer here was subjected to the required pre-qualification standards before he was admitted as Cook-Steward, it thus has to be safely presumed that the late Remo was in a good state of health when he boarded the vessel.331avvphi1 In sum, we find no reversible error on the part of the CA in rendering the assailed Decision which would warrant the reversal and/or modification of the same. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 97336 dated September 26, 2007 is AFFIRMED. No costs. SO ORDERED.
12. Rebellion vs. People (Warrantless arrest) 623 SCRA 343 13. People vs. Mariacos (warrantless seizures) 621 SCRA 327

G.R. No. 188611

June 16, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. BELEN MARIACOS, Appellant. DECISION NACHURA, J.:

Before this Court is an appeal from the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02718, which affirmed the decision 2 of the Regional Trial Court (RTC), Branch 29, San Fernando City, La Union, in Criminal Case No. 7144, finding appellant Belen Mariacos guilty of violating Article II, Section 5 of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002. The facts of the case, as summarized by the CA, are as follows: Accused-appellant Belen Mariacos was charged in an Information, dated November 7, 2005 of violating Section 5, Article II of Republic Act [No.] 9165, allegedly committed as follows: "That on or about the 27th day of October, 2005, in the Municipality of San Gabriel, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously transport, deliver 7,030.3, (sic) grams of dried marijuana fruiting tops without the necessary permit or authority from the proper government agency or office. CONTRARY TO LAW." When arraigned on December 13, 2005, accused-appellant pleaded not guilty. During the pre-trial, the following were stipulated upon: "1. Accused admits that she is the same person identified in the information as Belen Mariacos; 2. That accused is a resident of Brgy. Lunoy, San Gabriel, La Union; 3. That at the time of the arrest of the accused, accused had just alighted from a passenger jeepney; 4. That the marijuana allegedly taken from the possession of the accused contained in two (2) bags were submitted for examination to the Crime Lab; 5. That per Chemistry Report No. D-109-2005, the alleged drug submitted for examination gave positive result for the presence of marijuana; 6. That the drugs allegedly obtained from the accused contained (sic) and submitted for examination weighed 7,030.3 grams; 7. The Prosecutor admits the existence of a counter-affidavit executed by the accused; and 8. The existence of the affidavits executed by the witnesses of the accused family (sic): Lyn Punasen, Mercedes Tila and Magdalena Carino." During the trial, the prosecution established the following evidence: On October 26, 2005, in the evening, the San Gabriel Police Station of San Gabriel, La Union, conducted a checkpoint near the police station at the poblacion to intercept a suspected transportation of marijuana from Barangay Balbalayang, San Gabriel, La Union. The group at the checkpoint was composed of PO2 Lunes B. Pallayoc ("PO2 Pallayoc"), the Chief of Police, and other

policemen. When the checkpoint did not yield any suspect or marijuana, the Chief of Police instructed PO2 Pallayoc to proceed to Barangay Balbalayang to conduct surveillance operation (sic). At dawn on October 27, 2005, in Barangay Balbalayang, PO2 Pallayoc met with a secret agent of the Barangay Intelligence Network who informed him that a baggage of marijuana had been loaded on a passenger jeepney that was about to leave for the poblacion. The agent mentioned three (3) bags and one (1) blue plastic bag. Further, the agent described a backpack bag with an "O.K." marking. PO2 Pallayoc then boarded the said jeepney and positioned himself on top thereof. While the vehicle was in motion, he found the black backpack with an "O.K." marking and peeked inside its contents. PO2 Pallayoc found bricks of marijuana wrapped in newspapers. He then asked the other passengers on top of the jeepney about the owner of the bag, but no one knew. When the jeepney reached the poblacion, PO2 Pallayoc alighted together with the other passengers. Unfortunately, he did not notice who took the black backpack from atop the jeepney. He only realized a few moments later that the said bag and three (3) other bags, including a blue plastic bag, were already being carried away by two (2) women. He caught up with the women and introduced himself as a policeman. He told them that they were under arrest, but one of the women got away. PO2 Pallayoc brought the woman, who was later identified as herein accusedappellant Belen Mariacos, and the bags to the police station. At the police station, the investigators contacted the Mayor of San Gabriel to witness the opening of the bags. When the Mayor arrived about fifteen (15) minutes later, the bags were opened and three (3) bricks of marijuana wrapped in newspaper, two (2) round bundles of marijuana, and two (2) bricks of marijuana fruiting tops, all wrapped in a newspaper, were recovered. Thereafter, the investigators marked, inventoried and forwarded the confiscated marijuana to the crime laboratory for examination. The laboratory examination showed that the stuff found in the bags all tested positive for marijuana, a dangerous drug. When it was accused-appellants turn to present evidence, she testified that: On October 27, 2005, at around 7:00 in the morning, accused-appellant, together with Lani Herbacio, was inside a passenger jeepney bound for the poblacion. While the jeepney was still at the terminal waiting for passengers, one Bennie Lao-ang ("Lao-ang"), her neighbor, requested her to carry a few bags which had been loaded on top of the jeepney. At first, accused-appellant refused, but she was persuaded later when she was told that she would only be carrying the bags. When they reached the poblacion, Lao-ang handed accused-appellant and her companion, Lani Herbacio, the bags, and then Lao-ang suddenly ran away. A few moments later, PO2 Pallayoc was upon them, arresting them. Without explanation, they were brought to the police station. When they were at the police station, Lani Herbacio disappeared. It was also at the police station that accused-appellant discovered the true contents of the bags which she was asked to carry. She maintained that she was not the owner of the bags and that she did

not know what were contained in the bags. At the police station (sic) she executed a Counter-Affidavit.3 On January 31, 2007, the RTC promulgated a decision, the dispositive portion of which states: WHEREFORE, the Court finds the accused Belen Mariacos GUILTY as charged and sentences here (sic) to suffer the penalty of life imprisonment and to pay a fine of P500,000.00. The 7,030.3 grams of marijuana are ordered confiscated and turned over to the Philippine Drug Enforcement Agency for destruction in the presence of the Court personnel and media. SO ORDERED.4 Appellant appealed her conviction to the CA. She argued that the trial court erred in considering the evidence of the prosecution despite its inadmissibility. 5 She claimed that her right against an unreasonable search was flagrantly violated by Police Officer (PO)2 Pallayoc when the latter searched the bag, assuming it was hers, without a search warrant and with no permission from her. She averred that PO2 Pallayocs purpose for apprehending her was to verify if the bag she was carrying was the same one he had illegally searched earlier. Moreover, appellant contended that there was no probable cause for her arrest.6 Further, appellant claimed that the prosecution failed to prove the corpus delicti of the crime.7 She alleged that the apprehending police officers violated Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Board Regulation No. 2, Series of 1990, which prescribes the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles. The said regulation directs the apprehending team having initial custody and control of the drugs and/or paraphernalia, immediately after seizure or confiscation, to have the same physically inventoried and photographed in the presence of appellant or her representative, who shall be required to sign copies of the inventory. The failure to comply with this directive, appellant claimed, casts a serious doubt on the identity of the items allegedly confiscated from her. She, likewise, averred that the prosecution failed to prove that the items allegedly confiscated were indeed prohibited drugs, and to establish the chain of custody over the same. On the other hand, the People, through the Office of the Solicitor General (OSG), argued that the warrantless arrest of appellant and the warrantless seizure of marijuana were valid and legal,8 justified as a search of a moving vehicle. It averred that PO2 Pallayoc had reasonable ground to believe that appellant had committed the crime of delivering dangerous drugs based on reliable information from their agent, which was confirmed when he peeked into the bags and smelled the distinctive odor of marijuana.9 The OSG also argued that appellant was now estopped from questioning the illegality of her arrest since she voluntarily entered a plea of "not guilty" upon arraignment and participated in the trial and presented her evidence.10 The OSG brushed aside appellants argument that the bricks of marijuana were not photographed and inventoried in

her presence or that of her counsel immediately after confiscation, positing that physical inventory may be done at the nearest police station or at the nearest office of the apprehending team, whichever was practicable.11 In a Decision dated January 19, 2009, the CA dismissed appellants appeal and affirmed the RTC decision in toto. 12 It held that the prosecution had successfully proven that appellant carried away from the jeepney a number of bags which, when inspected by the police, contained dangerous drugs. The CA ruled that appellant was caught in flagrante delicto of "carrying and conveying" the bag that contained the illegal drugs, and thus held that appellants warrantless arrest was valid. The appellate court ratiocinated: It must be stressed that PO2 Pallayoc had earlier ascertained the contents of the bags when he was aboard the jeep. He saw the bricks of marijuana wrapped in newspaper. That said marijuana was on board the jeepney to be delivered to a specified destination was already unlawful. PO2 Pallayoc needed only to see for himself to whom those bags belonged. So, when he saw accused-appellant carrying the bags, PO2 Pallayoc was within his lawful duty to make a warrantless arrest of accused-appellant. xxxx Firstly, this Court opines that the invocation of Section 2, Article III of the Constitution is misplaced. At the time, when PO2 Pallayoc looked into the contents of the suspicious bags, there was no identified owner. He asked the other passengers atop the jeepney but no one knew who owned the bags. Thus, there could be no violation of the right when no one was entitled thereto at that time. Secondly, the facts of the case show the urgency of the situation. The local police has been trying to intercept the transport of the illegal drugs for more than a day, to no avail. Thus, when PO2 Pallayoc was tipped by the secret agent of the Barangay Intelligence Network, PO2 Pallayoc had no other recourse than to verify as promptly as possible the tip and check the contents of the bags. Thirdly, x x x the search was conducted in a moving vehicle. Time and again, a search of a moving vehicle has been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to move out of the locality or jurisdiction in which the warrant must be sought. Thus, under the facts, PO2 Pallayoc could not be expected to secure a search warrant in order to check the contents of the bags which were loaded on top of the moving jeepney. Otherwise, a search warrant would have been of no use because the motor vehicle had already left the locality.13 Appellant is now before this Court, appealing her conviction. Once again, we are asked to determine the limits of the powers of the States agents to conduct searches and seizures. Over the years, this Court had laid down the rules on searches and seizures, providing, more or less, clear parameters in determining which are proper and which are not.1avvphi1 Appellants main argument before the CA centered on the inadmissibility of the evidence used against her. She claims that her constitutional right against

unreasonable searches was flagrantly violated by the apprehending officer. Thus, we must determine if the search was lawful. If it was, then there would have been probable cause for the warrantless arrest of appellant. Article III, Section 2 of the Philippine Constitution provides: Section 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. Law and jurisprudence have laid down the instances when a warrantless search is valid. These are: 1. Warrantless search incidental to a lawful arrest recognized under Section 12 [now Section 13], Rule 126 of the Rules of Court and by prevailing jurisprudence; 2. Seizure of evidence in "plain view," the elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent[;] and; (d) "plain view" justified mere seizure of evidence without further search. 3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and Emergency Circumstances.14 Both the trial court and the CA anchored their respective decisions on the fact that the search was conducted on a moving vehicle to justify the validity of the search. Indeed, the search of a moving vehicle is one of the doctrinally accepted exceptions to the Constitutional mandate that no search or seizure shall be made except by virtue of a warrant issued by a judge after personally determining the existence of probable cause.15

In People v. Bagista,16 the Court said: The constitutional proscription against warrantless searches and seizures admits of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view. With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought. This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. It is well to remember that in the instances we have recognized as exceptions to the requirement of a judicial warrant, it is necessary that the officer effecting the arrest or seizure must have been impelled to do so because of probable cause. The essential requisite of probable cause must be satisfied before a warrantless search and seizure can be lawfully conducted. 17 Without probable cause, the articles seized cannot be admitted in evidence against the person arrested.18 Probable cause is defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law are in the place to be searched.19 The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.20 Over the years, the rules governing search and seizure have been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in instances where moving vehicle is used to transport contraband from one place to another with impunity.21 This exception is easy to understand. A search warrant may readily be obtained

when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is conducted on a mobile ship, on an aircraft, or in other motor vehicles since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought.22 Given the discussion above, it is readily apparent that the search in this case is valid. The vehicle that carried the contraband or prohibited drugs was about to leave. PO2 Pallayoc had to make a quick decision and act fast. It would be unreasonable to require him to procure a warrant before conducting the search under the circumstances. Time was of the essence in this case. The searching officer had no time to obtain a warrant. Indeed, he only had enough time to board the vehicle before the same left for its destination. It is well to remember that on October 26, 2005, the night before appellants arrest, the police received information that marijuana was to be transported from Barangay Balbalayang, and had set up a checkpoint around the area to intercept the suspects. At dawn of October 27, 2005, PO2 Pallayoc met the secret agent from the Barangay Intelligence Network, who informed him that a baggage of marijuana was loaded on a passenger jeepney about to leave for the poblacion. Thus, PO2 Pallayoc had probable cause to search the packages allegedly containing illegal drugs. This Court has also, time and again, upheld as valid a warrantless search incident to a lawful arrest. Thus, Section 13, Rule 126 of the Rules of Court provides: SEC. 13. Search incident to lawful arrest.A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.23 For this rule to apply, it is imperative that there be a prior valid arrest. Although, generally, a warrant is necessary for a valid arrest, the Rules of Court provides the exceptions therefor, to wit: SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.24 Be that as it may, we have held that a search substantially contemporaneous with

an arrest can precede the arrest if the police has probable cause to make the arrest at the outset of the search.25 Given that the search was valid, appellants arrest based on that search is also valid. Article II, Section 5 of the Comprehensive Dangerous Drugs Act of 2002 states: SEC. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions. In her defense, appellant averred that the packages she was carrying did not belong to her but to a neighbor who had asked her to carry the same for him. This contention, however, is of no consequence. When an accused is charged with illegal possession or transportation of prohibited drugs, the ownership thereof is immaterial. Consequently, proof of ownership of the confiscated marijuana is not necessary.26 Appellants alleged lack of knowledge does not constitute a valid defense. Lack of criminal intent and good faith are not exempting circumstances where the crime charged is malum prohibitum, as in this case.27 Mere possession and/or delivery of a prohibited drug, without legal authority, is punishable under the Dangerous Drugs Act.28 Anti-narcotics laws, like anti-gambling laws, are regulatory statutes. They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita. Laws defining crimes mala prohibita condemn behavior directed not against particular individuals, but against public order.29 Jurisprudence defines "transport" as "to carry or convey from one place to another."30 There is no definitive moment when an accused "transports" a prohibited drug. When the circumstances establish the purpose of an accused to transport and the fact of transportation itself, there should be no question as to the perpetration of the criminal act.31 The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed and it is

immaterial whether or not the place of destination is reached.32 Moreover, appellants possession of the packages containing illegal drugs gave rise to the disputable presumption33 that she is the owner of the packages and their contents.34 Appellant failed to rebut this presumption. Her uncorroborated claim of lack of knowledge that she had prohibited drug in her possession is insufficient. Appellants narration of facts deserves little credence. If it is true that Bennie Lao-ang merely asked her and her companion to carry some baggages, it is but logical to first ask what the packages contained and where these would be taken. Likewise, if, as appellant said, Lao-ang ran away after they disembarked from the jeepney, appellant and her companion should have ran after him to give him the bags he had left with them, and not to continue on their journey without knowing where they were taking the bags. Next, appellant argues that the prosecution failed to prove the corpus delicti of the crime. In particular, she alleged that the apprehending police officers failed to follow the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles. In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the very corpus delicti of that crime.35 Thus, Section 21 of R.A. No. 9165 prescribes the procedure for custody and disposition of seized dangerous drugs, to wit: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment . The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The Implementing Rules and Regulations (IRR) of R.A. No. 9165 further provides: SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as

instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. PO2 Pallayoc testified that after apprehending appellant, he immediately brought her to the police station. At the station, the police requested the Mayor to witness the opening of the bags seized from appellant. When the Mayor arrived, he opened the bag in front of appellant and the other police officers. The black bag yielded three bricks of marijuana wrapped in newspaper, while the plastic bag yielded two bundles of marijuana and two bricks of marijuana fruiting tops.36 PO2 Pallayoc identified the bricks. He and PO3 Stanley Campit then marked the same. Then the seized items were brought to the PNP Crime Laboratory for examination. It is admitted that there were no photographs taken of the drugs seized, that appellant was not accompanied by counsel, and that no representative from the media and the DOJ were present. However, this Court has already previously held that non-compliance with Section 21 is not fatal and will not render an accuseds arrest illegal, or make the items seized inadmissible. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items.37 Based on the testimony of PO2 Pallayoc, after appellants arrest, she was immediately brought to the police station where she stayed while waiting for the Mayor. It was the Mayor who opened the packages, revealing the illegal drugs, which were thereafter marked and sent to the police crime laboratory the following day. Contrary to appellants claim, the prosecutions evidence establishes the chain of custody from the time of appellants arrest until the prohibited drugs were tested at the police crime laboratory. While it is true that the arresting officer failed to state explicitly the justifiable ground for non-compliance with Section 21, this does not necessarily mean that appellants arrest was illegal or that the items seized are inadmissible. The justifiable ground will remain unknown because appellant did not question the custody and disposition of the items taken from her during the trial. 38 Even assuming that the police officers failed to abide by Section 21, appellant should have raised this issue before the trial court. She could have moved for the

quashal of the information at the first instance. But she did not. Hence, she is deemed to have waived any objection on the matter. Further, the actions of the police officers, in relation to the procedural rules on the chain of custody, enjoyed the presumption of regularity in the performance of official functions. Courts accord credence and full faith to the testimonies of police authorities, as they are presumed to be performing their duties regularly, absent any convincing proof to the contrary.39 In sum, the prosecution successfully established appellants guilt. Thus, her conviction must be affirmed. WHEREFORE, the foregoing premises considered, the appeal is DISMISSED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED. SO ORDERED.
14. Martinez vs. HRET (Nuisance Candidate) 610 SCRA 53 (nakasulat 610 SCRA 533, I double checked, dapat 53 lang)

G.R. No. 189034

January 11, 2010

CELESTINO A. MARTINEZ III, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND BENHUR L. SALIMBANGON, Respondents. DECISION VILLARAMA, JR., J.: This petition for certiorari under Rule 65 seeks to nullify the Decision1 dated May 28, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 dismissing the election protest and declaring private respondent as the duly elected Representative of the Fourth Legislative District of Cebu, and the Resolution2 dated July 30, 2009 denying petitioner's motion for reconsideration thereof. The Facts In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the same position. On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate.3 However, the Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on June 12, 2007 or almost one (1) month after the elections. On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative District of Cebu on the basis of official results showing that he garnered sixty-seven thousand two hundred seventy-seven

(67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-three (67,173) votes, or a difference of one hundred four (104) votes. Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26, 2007, the HRET granted his motion to convert the same into a Regular Protest of all one thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative District of Cebu. The election protest is based on three hundred (300) ballots more or less with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the Board of Election Inspectors (BEI) did not count for Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the same surname. Martinez further alleged that he lost several thousand votes as a result of incorrect appreciation of ballots not counted in his favor while clearly marked ballots, groups of ballots which appeared to have been prepared by one (1) person, individual ballots which appeared to have been prepared by two (2) or more persons, and fake and unofficial ballots were read and counted in favor of Salimbangon. He also claimed that the votes reflected in the election returns were unlawfully increased in favor of Salimbangon while votes in his favor were unlawfully decreased.4 Salimbangon filed his Answer with Counter-Protest stating that the Minutes of Voting (MOV) inside the ballot boxes in all the protested precincts contain no recorded objections regarding straying of votes claimed by Martinez, and that it was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative. He counter-protested 954 precincts on grounds of coercion/intimidation and duress; massive vote-buying; "lansadera"; misreading/miscounting/misappreciation of votes; and other electoral anomalies and irregularities. During the revision, ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative were not counted and temporarily classified as stray. These comprise majority of the 9,831 stray ballots claimed by Martinez.5 HRET Ruling In its Decision dated May 28, 2009, the HRET resolved each of the claims and objections respectively raised by protestant and protestee applying the rules for appreciation of ballots. The Tribunal recognized as most crucial the issue of whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative should be counted in favor of Martinez. Thus, the election protest "will rise or fall on how the Tribunal [appreciates said] ballots."6 Ruling on the issue, the HRET sustained the BEI in considering the ballots as stray in accordance with Sec. 211 (1) of the Omnibus Election Code which provides: "Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office."7 [EMPHASIS SUPPLIED.] Since the name of Edilito C. Martinez was still included in the official list of

candidates on election day (May 14, 2007), the HRET held that five thousand four hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the line for Representative were properly denied on the ground that there was no way of determining the real intention of the voter. These ballots were included in the 7,544 ballots denied as votes for Martinez in 961 precincts.8 Commiserating with Martinez on the delayed resolution of SPA Case No. 07-133 (PES), the HRET stated: "We sympathize to (sic) the protestant that he is the victim of the inaction of the Comelec in failing to decide the petition to disqualify Edilito C. Martinez as nuisance candidate on or before the May 14, 2007 elections. After all, it appears that the latter did not even lift a finger to oppose the petition for his declaration as nuisance candidate and that per its decision rendered only twenty-nine (29) days after the May 14, 2007 elections, Edilito C. Martinez was indeed a nuisance candidate. "As it is, the delay committed by the Comelec in deciding the petition to disqualify Edilito C. Martinez as nuisance candidate on or before May 14, 2007 election did not only cause injustice to herein protestant but worst, had resulted to (sic) the disenfranchisement of five thousand four hundred one (5,401) electorates whose votes could have changed the number of votes garnered by the parties herein if not changed altogether the outcome of the election itself."91avvphi1 The final overall results of recount and appreciation of ballots, election documents and other evidence in the entire 1,129 precincts as determined by the HRET are as follows :10 Overall Fourth District of Cebu Votes PROTESTANT PROTESTEE 1 Votes per physical count* ] in 961 precincts where there was ballot appreciation 2 Votes in 12 precincts** ] without ballots found during revision (based on election returns) 57,758 57,132

998

660

3 Votes per election returns 9,937 ] in 156 precincts in which several spurious ballots were placed after elections, counting and/or canvassing of votes 68,693 Less: Objected ballots 4,333

7,815

65,607 860

rejected*** Add: Claimed ballots admitted*** Unclaimed ballots admitted*** Restored Ballots Total Votes in the Contested Precincts After Appreciation of Evidence PLURALITY OF PROTESTEE'S VOTES * Taken from Revision Reports 66,655 2,287 8 2,348 11 2 67,108

453

** Namely Precinct Nos. 51A, Daan-Bantayan, 40A, 56A, 79A, all of Bantayan, 15C, 19D, 66B/67A, 88A, 105A, all of Bogo, 40A/41A, 70A/71A, all of Medellin, 30A, Sta. Fe. *** During appreciation of ballots in 961 precincts. On the basis of the foregoing, the HRET dismissed the election protest, affirmed the proclamation of Salimbangon and declared him to be the duly elected Representative of the Fourth Legislative District of Cebu, having won by a plurality margin of 453 votes. Martinez moved for reconsideration of the Decision, but the HRET denied it by Resolution dated July 30, 2009.[11] The Petition Petitioner alleges that the HRET gravely abused its discretion when it failed to credit the "MARTINEZ" or "C. MARTINEZ" votes in his favor despite the finality of the COMELEC resolution declaring Edilito C. Martinez a nuisance candidate. Petitioner argues that the Decision disenfranchised 5,401 voters when it ruled that said votes cannot be counted as votes for him since "there is no way of determining the real intention of the voter", in utter disregard of the mandate of Art. VIII, Sec. 14 of the Constitution. He maintains that there is no clear and good reason to justify the rejection of those 5,401 ballots, and points out that at the time private respondent was proclaimed by the Board of Canvassers, only 104 votes separated private respondent from him (private respondent was credited with 67,277 votes as against 67,173 votes of petitioner, while nuisance candidate Edilito C. Martinez got a measly 363 votes.)12 Petitioner further alleges that the HRET invalidated ballots for him without stating the legal and factual bases therefor, and on grounds other than the objections raised by private respondent. He contends that the HRET erred in concluding that the ruling in Bautista v. Commission on Elections13 cannot be applied in view of circumstances which supposedly distinguish the present case

from Bautista. Finally, petitioner cites the dissenting opinion of the Honorable Associate Justice Antonio Eduardo B. Nachura who disagreed with the majority ruling and posited that the final declaration by COMELEC that Edilito C. Martinez was a nuisance candidate and the cancellation of his certificate of candidacy should be deemed effective as of the day of the election.14 In his Comment, private respondent assails the apparent desire of petitioner for this Court to review the physical appreciation of ballots conducted by the HRET when he assigned as issues the alleged erroneous invalidation by the HRET of petitioner's ballots which were ruled as written by two (2) persons, and when he even appreciated ballots that were declared by the HRET as marked ballots. Private respondent details the mostly post-election anomalies and irregularities, particularly in Bogo City, perpetrated by the petitioner as found by the HRET such as tampering of election returns and statement of votes and vote padding/tampering. As to the "MARTINEZ" and "C. MARTINEZ" ballots, private respondent asserts that the HRET correctly refused to credit petitioner with these votes, stressing that there were admittedly three (3) candidates for the position of Representative for the Fourth Legislative District of Cebu as of May 14, 2007. Not a single voter in the district knew of any nuisance congressional candidate on election day. Private respondent argues that it would be illogical and most unfair to count the said ballots in favor of petitioner as it is erroneous to base the voter's intent on the supervening circumstance which was inexistent on the date the ballot was accomplished and cast. The HRET likewise did not err in holding that the Bautista ruling is inapplicable, there being no announced declaration yet of one (1) of the candidates as nuisance candidate when the voters cast their ballots on election day. The Issues What then is the legal effect of declaring a nuisance candidate as such in a final judgment after the elections? Should ballots containing only the similar surname of two (2) candidates be considered as stray votes or counted in favor of the bona fide candidate? Our Ruling The Court finds the petition meritorious. Section 69 of the Omnibus Election Code provides: "Section 69. Nuisance candidates. -- The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate." Republic Act No. 6646, otherwise known as "The Electoral Reforms Law of 1987" provides in Section 5 thereof:

"SEC. 5. Procedure in Cases of Nuisance Candidates. -(a) A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed. "(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any. "(c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses. "(d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof. "(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. "(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the decision of the Supreme Court to the city or municipal election registrars, boards of election inspectors and the general public in the political subdivision concerned." [EMPHASIS SUPPLIED.] By their very nature, proceedings in cases of nuisance candidates require prompt disposition. The declaration of a duly registered candidate as nuisance candidate results in the cancellation of his certificate of candidacy. The law mandates the Commission and the courts to give priority to cases of disqualification to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. 15 In many instances, however, proceedings against nuisance candidates remained pending and undecided until election day and even after canvassing of votes had been completed. Here, petitioner sought to declare Edilito C. Martinez as a nuisance candidate immediately after the latter filed his certificate of candidacy as an independent candidate and long before the May 14, 2007 elections. Petitioner averred that Edilito C. Martinez who was a driver of a motorcycle for hire, locally known as "habal-habal", did not own any real property in his municipality, had not filed his income tax return for the past years, and being an independent candidate did not

have any political machinery to propel his candidacy nor did he have political supporters to help him in his campaign. Petitioner claimed that Edilito C. Martinez after the filing of his certificate of candidacy, was never heard of again and neither did he start an electoral campaign. Given such lack of bona fide intention of Edilito C. Martinez to run for the office for which he filed a certificate of candidacy, petitioner contended that his candidacy would just cause confusion among the voters by the similarity of their surnames, considering that petitioner was undeniably the frontrunner in the congressional district in the Fourth Legislative District of Cebu as his mother, Rep. Clavel A. Martinez, was the incumbent Representative of the district.16 The COMELEC's Second Division granted the petition and declared Edilito C. Martinez as a nuisance candidate. It noted that the failure of said candidate to answer and deny the accusations against him clearly disclosed the fact that he had no bona fide intention to run for public office. Thus, it concluded that his only purpose for filing his certificate of candidacy was to put the election process into mockery and cause confusion among the voters by the similarity of his surname with that of petitioner.17 No motion for reconsideration was filed by Edilito C. Martinez and neither did he appeal before this Court the resolution declaring him a nuisance candidate. Said decision had thus become final and executory after five (5) days from its promulgation in accordance with the COMELEC Rules of Procedure.18 But having come too late, the decision was an empty victory for petitioner who lost to private respondent by a slim margin of 104 votes. In his election protest, petitioner sought to have ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative counted in his favor. The HRET, however, considered such ballots numbering 5,401 as stray and rejected petitioner's argument that the ruling in Bautista v. Comelec (supra) is applicable in this case. Bautista involves a mayoralty candidate (Cipriano "Efren" Bautista) during the May 11, 1998 elections who filed a petition to declare as nuisance candidate Edwin "Efren" Bautista, who filed a certificate of candidacy for the same position at the last minute. The COMELEC granted the petition, declared Edwin Bautista a nuisance candidate and ordered the cancellation of his certificate of candidacy. Consequently, Edwin Bautista's name was not included in the official list of candidates for the position of mayor of Navotas City and copies of the list were distributed to the boards of election inspectors (BEI). On May 8, 1998, Edwin filed a motion for reconsideration and as a result, the Election Officer of Navotas issued a directive to the BEI to include the name of Edwin Bautista in the certified list of candidates, only to recall said order in the afternoon. In view of the conflicting directives, counsel for petitioner requested the COMELEC that instructions be given to the BEI to tally separately the votes for "EFREN BAUTISTA", "EFREN", "E. BAUTISTA" and "BAUTISTA." On May 13, 1998, the COMELEC denied Edwin Bautista's motion for reconsideration. When the canvass of the election returns was commenced, the Municipal Board of Canvassers refused to canvass as part of the valid votes of petitioner the separate tallies of ballots on which were written "EFREN BAUTISTA," "EFREN," "E. BAUTISTA" and "BAUTISTA." Petitioner then filed with

the COMELEC a petition to declare illegal the proceedings of the Municipal Board of Canvassers. Meanwhile Edwin Bautista filed a petition for certiorari with this Court assailing the actions of COMELEC declaring him a nuisance candidate and ordering the cancellation of his certificate of candidacy. The Court dismissed said petition finding no grave abuse of discretion committed by the COMELEC and subsequently also denied with finality the motion for reconsideration filed by Edwin Bautista. As to the petition to declare as illegal the proceedings of the Municipal Board of Canvassers for its refusal to include the stray votes in the separate tally sheet, the COMELEC dismissed the same, citing Sec. 211 (4) 19 of the Omnibus Election Code. Petitioner Bautista elevated the case to the Supreme Court which ruled in his favor, thus: "At the outset and initially setting aside all the ramifications of the substantive issue of the instant petition, the primordial concern of the Court is to verify whether or not on the day of the election, there was only one 'Efren Bautista' as a validly registered candidate as far as the electorate was concerned. "x x x "Edwin Bautista moved for reconsideration on May 8, 1998. Unfortunately, said motion was not resolved as of election day. Technically, the April 30, 1998 decision was not yet final as of May 11, 1998, and this technicality created serious problems on election day. "x x x "An analysis of the foregoing incidents shows that the separate tallies were made to remedy any prejudice that may be caused by the inclusion of a potential nuisance candidate in the Navotas mayoralty race. Such inclusion was brought about by technicality, specifically Edwin Bautista's filing of a motion for reconsideration, which prevented the April 30, 1998 resolution disqualifying him from becoming final at that time. "Ideally, the matter should have been finally resolved prior to election day. Its pendency on election day exposed petitioner to the evils brought about by the inclusion of a then potential, later shown in reality to be nuisance candidate. We have ruled that a nuisance candidate is one whose certificate of candidacy is presented and filed to cause confusion among the electorate by the similarity of the names of the registered candidate or by other names which demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate ( Fernandez vs. Fernandez, 36 SCRA 1 [1970]). "It must be emphasized that the instant case involves a ground for disqualification which clearly affects the voters' will and causes confusion that frustrates the same. This is precisely what election laws are trying to protect. They give effect to, rather than frustrate, the will of the voter. Thus, extreme caution should be observed before any ballot is invalidated. Further, in the appreciation of ballots, doubts are resolved in favor of their validity. ( Silverio vs.

Castro, 19 SCRA 521 [1967]). "x x x x "As discussed in the COMELEC's April 30, 1998 decision, in accordance with Section 69, Edwin Bautista was found to be a nuisance candidate. First and foremost, he was running under the name of Edwin 'Efren' Bautista, when it had been established that he was really known as 'Boboy' or 'Boboy Tarugo.' Second, the following circumstances saliently demonstrate that he had no bona fide intention of running for the office for which he filed his certificate of candidacy: He is said to be engaged in a 'buy and sell' business, but he has no license therefor. He declared that he had a monthly income of P10,000.00 but with expenses totalling P9,000.00. He does not own any real property. He did not file his income tax return for the years 1995 and 1996 and when asked why, he said he did not have any net income and that he was only earning enough to defray household expenses. He even violated COMELEC rules since he failed to submit the names of individuals who paid for his campaign materials as well as the printing press he dealt with. He did not have a political line-up and had no funds to support his campaign expenses. He merely depended on friends whose names he did not submit to the COMELEC. And as straightforwardly found by the COMELEC, he 'has not demonstrated any accomplishment/achievement in his twenty-six (26) years of existence as a person that would surely attract the electorate to choose him as their representative in government.' "In contrast, it was shown that petitioner had previously held under his name Cipriano and appellation, 'Efren' Bautista, various elective positions, namely: Barangay Captain of Navotas in 1962, Municipal Councilor of Navotas in 1970, and Vice-Mayor of Navotas in 1980. He is a duly registered Naval Architect and Marine Engineer, and a member of various civic organizations such as the Rotary Club of Navotas and the Philippine Jaycees. "It seems obvious to us that the votes separately tallied are not really stray votes. Then COMELEC Chairman Bernardo P . Pardo himself, now a respected member of the Court, in his May 14, 1998 Memorandum, allowed the segregation of the votes for "Bautista," "Efren," and "Efren Bautista," and "E. Bautista" into a separate improvised tally, for the purpose of later counting the votes. In fine, the COMELEC itself validated the separate tallies since they were meant to be used in the canvassing later on to the actual number of votes cast. These separate tallies actually made the will of the electorate determinable despite the apparent confusion caused by a potential nuisance candidate. What remained unsaid by the COMELEC Chairman was the fact that as early as May 13, 1998, the COMELEC had already spoken and stated its final position on the issue of whether or not Edwin Bautista is a nuisance candidate. It had already denied Edwin's motion for reconsideration in its May 13, 1998 Order x x x "x x x x "This important detail only shows that as of May 14, 1998, when Chairman Pardo issued the aforestated Memorandum, Edwin Bautista had already been finally declared as a nuisance candidate by the COMELEC . And when

Edwin Bautista elevated the matter to this Court, we upheld such declaration. How then can we consider valid the votes for Edwin Bautista whom we finally ruled as disqualified from the 1998 Navotas mayoralty race? That is like saying one thing and doing another. These are two incompatible acts the contrariety and inconsistency of which are all too obvious."20 [EMPHASIS SUPPLIED.] Petitioner now invokes this Court's pronouncement in Bautista to the effect that votes indicating only the surname of two (2) candidates should not be considered as stray but counted in favor of the bona fide candidate after the other candidate with a similar surname was declared a nuisance candidate. In refusing to apply the ruling in Bautista, the HRET said that the factual circumstances in said case are different, thus: "Protestant strongly asserts that the 'MARTINEZ' or 'C. MARTINEZ' only votes be counted in his favor invoking the ruling in the case of Bautista vs. Comelec, G.R. No. 133840, November 13, 1998 (298 SCRA 480) where the Supreme Court held that the final and conclusive ruling on the declaration of a nuisance candidate retroacts on the day of the election. "We disagree. "While the Bautista vs. Comelec case also involves a candidate declared as nuisance by the Comelec, the case herein is not on all fours with it. x x x "x x x "It is clear from the foregoing facts of the Bautista case that the nuisance candidate, Edwin Bautista, was declared as such on April 30, 1998, eleven (11) days before the May 11, 1998 elections. Although the decision was not yet final on Election Day because of a Motion for Reconsideration that Edwin Bautista had filed on May 8, 1998, nevertheless, his name was not included in the list of candidates for the position of Mayor for Navotas. This is not the situation in the present case for Edilito C. Martinez was not yet declared disqualified during the May 14, 2007 elections. There were, therefore, two (2) congressional candidates on the day of the election with "MARTINEZ" as surname, Celestino A. Martinez and Edilito C. Martinez. "More importantly, in the Bautista case, while the Comelec's decision declaring Edwin Bautista a nuisance candidate had not yet attained finality on election day, May 11, 1998, the voters of Navotas were informed of such disqualification by virtue of newspaper releases and other forms of notification. The voters in said case had constructive as well as actual knowledge of the action of the Comelec delisting Edwin Bautista as a candidate for mayor. This is not so in the present case for Edilito C. Martinez was not yet disqualified as nuisance candidate during the May 14, 2007 elections. There were no newspaper releases and other forms of notification to the voters of the Fourth District of Cebu on or before May 14, 2007 elections that Edilito C. Martinez was disqualified as a nuisance candidate. "21 [EMPHASIS SUPPLIED.] It is clear that Bautista is anchored on the factual determination that the COMELEC resolution declaring Edwin Bautista a nuisance candidate was already

final since his motion for reconsideration was already denied by the Commission when canvassing of the votes started. Hence, the segregated and separately tallied votes containing only the similar first names/nicknames and surnames of the two (2) candidates were considered as not really stray votes. We held that the separate tallies validated by the COMELEC actually made the will of the electorate determinable despite the apparent confusion caused by a nuisance candidate. In the case at bar, there was no segregation or separate tally of votes for petitioner. Unlike in Bautista, there was simply no opportunity for petitioner to request the segregation and separate tally of expected ballots containing only the surname "MARTINEZ" as the resolution granting his petition was promulgated only a month later. The HRET, while not closing its eyes to the prejudice caused to petitioner by COMELEC's inaction and delay, as well as the disenfranchisement of the 5,401 voters, refused to credit him with those votes on the ground that there was no way of determining the real intention of the voter. We disagree. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. Election contests, therefore, involve the adjudication not only of private and pecuniary interests of rival candidates, but also of paramount public interest considering the need to dispel uncertainty over the real choice of the electorate.22 In controversies pertaining to nuisance candidates as in the case at bar, the law contemplates the likelihood of confusion which the similarity of surnames of two (2) candidates may generate. A nuisance candidate is thus defined as one who, based on the attendant circumstances, has no bona fide intention to run for the office for which the certificate of candidacy has been filed, his sole purpose being the reduction of the votes of a strong candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray and not counted for either of them. In elections for national positions such as President, Vice-President and Senator, the sheer logistical challenge posed by nuisance candidates gives compelling reason for the Commission to exercise its authority to eliminate nuisance candidates who obviously have no financial capacity or serious intention to mount a nationwide campaign. Thus we explained in Pamatong v. Commission on Elections23: "The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties

should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held: [T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot -- the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process]. "x x x x "There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. x x x "The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place, watchers in the board of canvassers, or even the receipt of electoral contributions. Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election. "Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. x x x "x x x"
24

[emphasis supplied]

Given the realities of elections in our country and particularly contests involving local positions, what emerges as the paramount concern in barring nuisance candidates from participating in the electoral exercise is the avoidance of confusion and frustration of the democratic process by preventing a faithful determination of the true will of the electorate, more than the practical considerations mentioned in Pamatong. A report published by the Philippine Center for Investigative Journalism in connection with the May 11, 1998 elections indicated that the tactic of fielding nuisance candidates with the same surnames as leading contenders had become one (1) "dirty trick" practiced in at least 18 parts of the country. The success of this clever scheme by political rivals or operators has been attributed to the last-minute disqualification of nuisance candidates by the Commission, notably its "slow-moving" decision-making. 25 As illustrated in Bautista, the pendency of proceedings against a nuisance

candidate on election day inevitably exposes the bona fide candidate to the confusion over the similarity of names that affects the voter's will and frustrates the same. It may be that the factual scenario in Bautista is not exactly the same as in this case, mainly because the Comelec resolution declaring Edwin Bautista a nuisance candidate was issued before and not after the elections, with the electorate having been informed thereof through newspaper releases and other forms of notification on the day of election. Undeniably, however, the adverse effect on the voter's will was similarly present in this case, if not worse, considering the substantial number of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative - over five thousand - which have been declared as stray votes, the invalidated ballots being more than sufficient to overcome private respondent's lead of only 453 votes after the recount. Bautista upheld the basic rule that the primordial objective of election laws is to give effect to, rather than frustrate, the will of the voter. The inclusion of nuisance candidates turns the electoral exercise into an uneven playing field where the bona fide candidate is faced with the prospect of having a significant number of votes cast for him invalidated as stray votes by the mere presence of another candidate with a similar surname. Any delay on the part of the COMELEC increases the probability of votes lost in this manner. While political campaigners try to minimize stray votes by advising the electorate to write the full name of their candidate on the ballot, still, election woes brought by nuisance candidates persist. The Court will not speculate on whether the new automated voting system to be implemented in the May 2010 elections will lessen the possibility of confusion over the names of candidates. What needs to be stressed at this point is the apparent failure of the HRET to give weight to relevant circumstances that make the will of the electorate determinable, following the precedent in Bautista. These can be gleaned from the findings of the Commission on the personal circumstances of Edilito C. Martinez clearly indicating lack of serious intent to run for the position for which he filed his certificate of candidacy, foremost of which is his sudden absence after such filing. In contrast to petitioner who is a well-known politician, a former municipal mayor for three (3) terms and a strong contender for the position of Representative of the Fourth Legislative District of Cebu (then occupied by his mother), it seems too obvious that Edilito C. Martinez was far from the voters' consciousness as he did not even campaign nor formally launch his candidacy. The HRET likewise failed to mention the total number of votes actually cast for Edilito C. Martinez, which can support petitioner's contention that the "MARTINEZ" and "C. MARTINEZ" votes could not have been intended as votes for Edilito C. Martinez. Petitioner should not be prejudiced by COMELEC's inefficiency and lethargy. Nor should the absence of objection over straying of votes during the actual counting bar petitioner from raising the issue in his election protest. The evidence clearly shows that Edilito C. Martinez, who did not even bother to file an answer and simply disappeared after filing his certificate of candidacy, was an unknown in politics within the district, a " habal-habal" driver who had neither the financial resources nor political support to sustain his candidacy. The similarity of his

surname with that of petitioner was meant to cause confusion among the voters and spoil petitioner's chances of winning the congressional race for the Fourth Legislative District of Cebu. As it turned out, there were thousands of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative, votes considered stray by the BEI and not counted in favor of petitioner, and which the HRET affirmed to be invalid votes. Had the Commission timely resolved the petition to declare Edilito C. Martinez a nuisance candidate, all such ballots with "MARTINEZ" or "C. MARTINEZ" would have been counted in favor of petitioner and not considered stray, pursuant to COMELEC Resolution No. 4116,26 issued in relation to the finality of resolutions or decisions in disqualification cases, which provides: "This pertains to the finality of decisions or resolutions of the Commission en banc or division, particularly on Special Actions (Disqualification Cases). Special Action cases refer to the following: (a) Petition to deny due course to a certificate of candidacy; (b) Petition to declare a candidate as a nuisance candidate; (c) Petition to disqualify a candidate; and (d) Petition to postpone or suspend an election. Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it is hereby RESOLVED, as follows: (1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court; xxx (4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the nuisance candidate has the same name as the bona fide candidate shall be immediately executory; (5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate. All resolutions, orders and rules inconsistent herewith are hereby modified or repealed." [emphasis supplied.] We held in several cases that the judgments of the Electoral Tribunals are beyond judicial interference, unless rendered without or in excess of their jurisdiction or with grave abuse of discretion. 27 The power of judicial review may be invoked in exceptional cases upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a clear denial of due process of law, or upon a demonstration of a very clear unmitigated error,

manifestly constituting such grave abuse of direction that there has to be a remedy for such abuse.28 Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law. 29 Respondent HRET gravely abused its discretion in affirming the proclamation of respondent Salimbangon as the duly elected Representative of the Fourth Legislative District of Cebu despite the final outcome of revision showing 5,401 ballots with only "MARTINEZ" or "C. "MARTINEZ" written on the line for Representative, votes which should have been properly counted in favor of petitioner and not nullified as stray votes, after considering all relevant circumstances clearly establishing that such votes could not have been intended for "Edilito C. Martinez" who was declared a nuisance candidate in a final judgment. Ensconced in our jurisprudence is the well-founded rule that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. An election protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of the people is imperative. 30 The prohibition against nuisance candidates is aimed precisely at preventing uncertainty and confusion in ascertaining the true will of the electorate. Thus, in certain situations as in the case at bar, final judgments declaring a nuisance candidate should effectively cancel the certificate of candidacy filed by such candidate as of election day. Otherwise, potential nuisance candidates will continue to put the electoral process into mockery by filing certificates of candidacy at the last minute and delaying resolution of any petition to declare them as nuisance candidates until elections are held and the votes counted and canvassed. We therefore hold that ballots indicating only the similar surname of two (2) candidates for the same position may, in appropriate cases, be counted in favor of the bona fide candidate and not considered stray, even if the other candidate was declared a nuisance candidate by final judgment after the elections. Accordingly, the 5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner giving him a total of 72,056 votes as against 67,108 total votes of private respondent. Petitioner thus garnered more votes than private respondent with a winning margin of 4,948 votes. WHEREFORE, the petition is GRANTED. The Decision dated May 28, 2009 and Resolution dated July 30, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 are ANNULLED and SET ASIDE. Petitioner Celestino A. Martinez III is hereby declared the duly elected Representative of the Fourth Legislative District of Cebu in the May 14, 2007 elections. This decision is immediately executory. Let a copy of the decision be served personally upon the parties and their counsels. No pronouncement as to costs.

SO ORDERED.
15. People vs. Noque (Ephedrine) 610 SCRA 195

G.R. No. 175319

January 15, 2010

PEOPLE OF THE PHILIPPINES, Appellee vs. JOSELITO NOQUE y GOMEZ, Appellant. DECISION DEL CASTILLO, J.: The illicit trade and use of dangerous drugs destroys the moral fiber of society. It has eroded and disrupted family life, increased the transmission of sexually related diseases, resulted in permanent and fatal damage to the physical and mental health, and wasted dreams, opportunities and hopes for a better future. As an ardent sentinel of the peoples rights and welfare, this Court shall not hesitate to dispense justice on people who engage in such an activity. 1 The commitment to this end is exemplified in this appeal. The Charges The appeal stems from two Informations filed before the Regional Trial Court (RTC) of Manila, which were subsequently docketed as Criminal Case Nos. 01189458 and 01-189459, and raffled to Branch 35 of said court. The Information in Criminal Case No. 01-189458 charging appellant Joselito Noque y Gomez with violation of Section 15, Article III in relation to Section 21 (e), (f), (m), (o), Article 1 of Republic Act (RA) No. 6425, as amended by Presidential Decree (PD) No. 1683 and as further amended by RA 7659 reads: That on or about January 30, 2001, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, dispense, deliver, transport or distribute any regulated drug, did then and there willfully, unlawfully and knowingly sell or offer for sale, dispense, deliver, transport or distribute 2.779 (two point seven seven nine grams) and 2.729 (two point seven two nine grams) of white crystalline substance known as shabu containing methamphetamine hydrochloride, which is a regulated drug. Contrary to law.2 On the other hand, the Information in Criminal Case No. 01-189459 contains the following accusatory allegations for violation of Section 16, Article III in relation to Section 2 (e-2) Article I of RA 6425 as amended by Batas Pambansa (BP) Bilang 179 and as further amended by RA 7659: That on or about January 30, 2001, in the City of Manila, Philippines, the said accused without being authorized by law to possess or use any regulated drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control (six seven nine point two one five grams) 679.215 grams of white crystalline substance known as shabu containing methamphetamine hydrochloride, a regulated drug, without the corresponding

license or prescription thereof. Contrary to law.3 During his arraignment on July 23, 2001, appellant pleaded not guilty to both charges. Pre-trial conference was conducted and upon its termination a joint trial ensued. Version of the Prosecution At 9 oclock in the evening of January 30, 2001, a confidential informant of Senior Police Officer 4 (SPO4) Norberto Murillo, went to Police Station No. 4 of the Western Police District (WPD) to tip off on the drug trafficking activities of the appellant in Malate, Manila. SP04 Murillo immediately directed Police Officers (POs) Christian Balais (Balais) and Dionisio Borca (Borca) to conduct surveillance in the area mentioned by the informant. The surveillance confirmed appellants illegal operations being conducted at No. 630 San Andres Street, Malate, Manila. Thereafter, SP04 Murillo formed and led a buy-bust team with POs Balais, Borca, Ramon Pablo, Roberto Godoy, Edgardo Book, Bernard Mino, Rodante Bollotano, and Melchor Barolo as members. PO1 Balais was designated as poseur-buyer and was provided with 10 pieces of 100 peso bills as buy-bust money. The buy-bust team, together with the informant, proceeded to the aforementioned address and upon arrival thereat, positioned themselves outside the appellants house. PO1 Balais and the informant thereafter called out the appellant, who welcomed the two and brought them to his bedroom. The informant asked the appellant if he had P1,000.00 worth of methamphetamine hydrochloride or "shabu" then pointed to PO1 Balais as the actual buyer. When PO1 Balais handed the marked money to the appellant, the latter brought out from under a table a "pranela" bag from which he took two plastic sachets containing white crystalline granules suspected to be shabu. The informant slipped out of the house as the pre-arranged signal to the buy-bust team that the sale had been consummated. After seeing the informant leave, the team entered appellants house. SPO4 Murillo frisked the appellant and recovered the buy-bust money. He also confiscated the "pranela" bag that contained a large quantity of crystalline granules suspected to be shabu. The two persons who were in a "pot session" with the appellant at the time of the raid were likewise arrested and brought to the WPD Station No. 9 for investigation. The seized articles were taken to the police station and submitted to the crime laboratory for examination to determine the chemical composition of the crystalline substance. Police Inspector (P/Insp.) and Forensic Chemical Officer Miladenia Tapan examined one self-sealing transparent plastic bag with markings "JNG" containing 679.215 grams of white crystalline granules; and two heat-sealed transparent plastic sachets each containing white crystalline substance, pre-marked "JNG-1" weighing 2.779 grams and "JNG-2"weighing 2.729 grams. The qualitative examinations yielded positive results for ephedrine, a regulated drug.

Version of the Defense The appellant gave a different version of the events that transpired. He testified that he was in his house in the evening of January 23, 2001 when six policemen led by SPO4 Murillo entered and arrested an unidentified occupant of the room next to his. The arresting team returned after 30 minutes and apprehended another person. When they came back the third time, they took him with them to WPD Station No. 9 where his wallet, belt and shoes were taken. While under detention, SPO4 Murillo ordered him to admit selling illegal substances but he refused. He was released on January 26, 2001 only to be rearrested at around 9 oclock in the evening on January 30, 2001 when SPO4 Murillo and his team returned to his house and took him at gunpoint to the police station where he was detained for 24 hours. Police officers presented him later to Mayor Lito Atienza and General Avelino Razon for a press conference. Ruling of the Regional Trial Court In its Decision4 dated February 28, 2003, the trial court convicted the appellant of both charges. It declared that the evidence adduced by the prosecution established with moral certainty his guilt for committing the crimes in the manner narrated in the Informations. The testimonies of police officers that they caught appellant in flagrante delicto of selling and possessing a dangerous drug are clear and positive evidence that deserve more evidentiary weight than appellants defenses of denial and frame-up, which are mere negative and selfserving assertions unsubstantiated by clear and convincing evidence. The trial court also ruled that it cannot deviate from the presumption of regularity in the performance of duty on the part of the police officers since no ill motives were ascribed to them that would entice them to testify falsely against the appellant. The trial court also held that while the Informations alleged methamphetamine hydrochloride as the drug seized from the appellant, the drug actually confiscated which was ephedrine, is a precursor of methamphetamine, i.e., methamphetamine is an element of, and is present in ephedrine. Ephedrine is the raw material while methamphetamine is its refined product. Both drugs have the same chemical formula except for the presence of a single atom of oxygen which when removed by means of chemical reaction changes ephedrine to methamphetamine. Thus, the trial court ruled that the appellant can be convicted of the offenses charged, which are included in the crimes proved. The trial court further held that under Section 4, Rule 120 of the Rules of Court, a variance in the offense charged in the complaint or information and that proved shall result in the conviction for the offense charged which is included in the offense proved. In determining the quantity of methamphetamine hydrochloride upon which the proper imposable penalty on the appellant must be based, the trial court gave credence to the testimony of prosecution witness, P/Insp. Tapan that a gram of ephedrine would produce gram of methamphetamine when refined.5 Conformably, the methamphetamine contents of 5.508 grams6 of ephedrine in Criminal Case No. 01-189458 would be 2.754 grams. Moreover, the methamphetamine contents of 679.215 grams of ephedrine in Criminal Case No.

01-189459 would be 339.6075 grams. The dispositive portion of the Decision of the trial court reads: WHEREFORE, judgment is rendered: In Criminal Case No. 01-189458, pronouncing accused JOSELITO NOQUE y GOMEZ guilty beyond reasonable doubt of selling a net quantity of 2.754 grams of methamphetamine hydrochloride without authority of law, penalized under Section 15 in relation to Section 20 of Republic Act No. 6425, as amended, and sentencing the said accused to the indeterminate penalty ranging from four (4) years and two (2) months of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum, and to pay the costs. In Criminal Case No. 01-189459, pronouncing the same accused JOSELITO NOQUE y GOMEZ guilty beyond reasonable doubt of possession of a net quantity of 339.6075 grams of methamphetamine hydrochloride without license or prescription, penalized under Section 16 in relation to Section 20 of Republic Act No. 6425, as amended, and sentencing the said accused to the penalty of reclusion perpetua and to pay a fine of P5,000,000.00, plus the costs. In the service of his sentences, the full time during which the accused had been under preventive imprisonment should be credited in his favor provided that he had agreed voluntarily in writing to abide with the same disciplinary rules imposed on convicted prisoner. Otherwise, he should be credited with four-fifths (4/5) only of the time he had been under preventive imprisonment. Exhibits "B" and "C" are ordered confiscated and forfeited in favor of the government. Within ten (10) days following the promulgation of this judgment, the Branch Clerk of this Court, is ordered to turn over, under proper receipt, the regulated drug involved in these cases to the Philippine Drug Enforcement Agency (PDEA) for proper disposal. SO ORDERED.7 Ruling of the Court of Appeals The CA affirmed the trial courts judgment. It held that the designations in the Informations are for violations of Sections 15 and 16 of RA 6425 that define and penalize the crimes of illegal sale and illegal possession of regulated drugs. While the allegations in the Informations refer to unauthorized sale and possession of "shabu" or methamphetamine hydrochloride, and not of ephedrine, the allegations are however immediately followed by the qualifying phrase "which is a regulated drug." Stated differently, the CA held that the designations and allegations in the informations are for the crimes of illegal sale and illegal possession of regulated drugs. There being no dispute that ephedrine is a regulated drug, pursuant to Board Resolution No. 2, Series of 1988, issued by the Dangerous Drugs Board on March 17, 1988, the CA ruled that the appellant is deemed to have been sufficiently informed of the nature of the crime with which he is accused. The fact that the chemical structures of ephedrine and methamphetamine are the same except for the presence of an atom of oxygen in the former strengthens this ruling.8 However, the CA modified the penalty imposed by the trial court in Criminal

Case No. 01-189458. It held that in the absence of any mitigating or aggravating circumstances in this case, the penalty should be imposed in its medium period, ranging from six months of arresto mayor, as minimum, to two years, four months and one day of prision correccional, as maximum. Thus, the dispositive portion of the Decision of the CA reads: WHEREFORE, premises considered, the February 28, 2003 Decision of the Regional Trial Court of Manila, Branch 35, is hereby AFFIRMED with the MODIFICATION that in Criminal Case No. 01-189458, accused-appellant is hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as maximum. SO ORDERED.9 Our Ruling The appeal is bereft of merit. The prosecutions evidence satisfactorily proved that appellant is guilty of illegal sale of a dangerous drug. The prosecution successfully proved that appellant violated Section 15, Article III of RA 6425. The prosecutions evidence established the concurrence of the elements of an illegal sale of a dangerous drug, to wit: (1) the identity of the buyer and seller, object, and consideration; and (2) the delivery of the thing sold and the payment therefor.10 In the instant case, the police officers conducted a buy-bust operation after receiving confirmed surveillance reports that the appellant was engaged in the illicit sale of dangerous drugs at No. 630 San Andres Street, Malate, Manila. PO1 Balais, the designated poseur-buyer of the buy-bust team, personally identified the appellant as the person who volunteered to sell to him P1,000.00 worth of white crystalline substance alleged to be shabu. The police officer received this illegal merchandise after giving the appellant the marked money as payment. Undoubtedly, the appellant is guilty of selling a dangerous drug. The prosecutions evidence satisfactorily proved that appellant illegally possessed a dangerous drug. The prosecution was also successful in proving that appellant violated Section 16, Article III of RA 6425. It adduced evidence that established the presence of the elements of illegal possession of a dangerous drug. It showed that (1) the appellant was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the appellant was freely and consciously aware of being in possession of the drug.11 The police buy-bust team apprehended the appellant for the sale of a white crystalline substance then proceeded to search the premises. They found a large quantity of the same substance inside the bag that contained the two sachets of the regulated drug sold to PO1 Balais. Appellant did not offer any explanation why he is in custody of the said substance. Neither did the appellant present any authorization to possess the same. "Mere possession of a regulated drug per se

constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession the onus probandi is shifted to the accused, to explain the absence of knowledge or animus possidendi."12 With the burden of evidence shifted to the appellant, it was his duty to explain his innocence on the regulated drug seized from his person. However, as already mentioned, he did not offer any excuse or explanation regarding his possession thereof. There is no evidence showing that the police officers are actuated by ill motives. Likewise to be considered against the appellant is his failure to present evidence imputing evil motive on the part of the police officers who participated in the entrapment operation to testify falsely against him. "Where there is no evidence that the principal witness of the prosecution was actuated by ill or devious motive, the testimony is entitled to full faith and credit."13 Appellants right to be informed of the nature and cause of the accusations was not violated. The only issue raised by the appellant in this petition is that his conviction for the sale and possession of shabu, despite the fact that what was established and proven was the sale and possession of ephedrine, violated his constitutional right to be informed of the nature and cause of the accusations against him since the charges in the Informations are for selling and possessing methamphetamine hydrochloride. We agree with the findings of the CA and the trial court, as well as the testimony of the forensic chemical officer, that the drug known as ephedrine has a central nervous stimulating effect similar to that of methamphetamine. In fact, ephedrine is an important precursor used in the clandestine synthesis of methamphetamine, which in crystallized form is methamphetamine hydrochloride. Thus, on March 17, 1988, pursuant to Section 20(8) of RA 6425, as amended, the Dangerous Drugs Board in its Board Regulation No. 2, S. 1988, classified as regulated drug all raw materials of ephedrine, as well as preparations containing the said drug. The chemical formula of ephedrine is C10 H15 NO, whereas that of methamphetamine is C10 H15 N. The only difference between ephedrine and methamphetamine is the presence of a single atom of oxygen in the former. The removal of the oxygen in ephedrine will produce methamphetamine. With ephedrine containing fifty percent (50%) of methamphetamine hydrochloride if the oxygen content in the former is removed, the nearly 680 grams of ephedrine seized from the appellant contains about 340 grams of methamphetamine hydrochloride. Moreover, as correctly observed by CA, the offenses designated in the Informations are for violations of Sections 15 and 16 of RA 6425, which define and penalize the crimes of illegal sale and possession of regulated drugs. The allegations in the Informations for the unauthorized sale and possession of "shabu" or methamphetamine hydrochloride are immediately followed by the qualifying phrase "which is a regulated drug". Thus, it is clear that the designations and allegations in the Informations are for the crimes of illegal sale

and illegal possession of regulated drugs. Ephedrine has been classified as a regulated drug by the Dangerous Drugs Board in Board Resolution No. 2, Series of 1988. The CA correctly ruled that Sections 4 and 5, Rule 120 of the Rules of Court, 14 can be applied by analogy in convicting the appellant of the offenses charged, which are included in the crimes proved. Under these provisions, an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. At any rate, a minor variance between the information and the evidence does not alter the nature of the offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be pleaded as a ground for acquittal.15 In other words, his right to be informed of the charges against him has not been violated because where an accused is charged with a specific crime, he is duly informed not only of such specific crime but also of lesser crimes or offenses included therein.16 The Penalties In Criminal Case No. 01-189458, appellant is found guilty of violation of Section 15, Article III of RA 6425, as amended. We explained in People v. Isnani17 that: Under Section 15, Article III in relation to the second paragraph of Sections 20 and 21 of Article IV of Republic Act No. 6425, as amended by Section 17 of R.A. No. 7659, the imposable penalty of illegal sale of a regulated drug (shabu), less than 200 grams, as in this case, is prision correccional to reclusion perpetua. Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows: QUANTITY Less than one (1) gram to 49.25 grams 49.26 grams to 98.50 grams 98.51 grams to 147.75 grams IMPOSABLE PENALTY prision correccional prision mayor reclusion temporal

147.76 grams to 199 grams reclusion perpetua The quantity of shabu involved is 0.060 grams. Pursuant to the second paragraph of Sections 20 and 21 of Article IV of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659 (for unauthorized sale of less than 200 grams of shabu) and considering our ruling in the above case, the imposable penalty is prision correccional.1avvphi1 Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating circumstance that attended the commission of the crime, the maximum period is prision correccional in its medium period which has a duration of 2 years, 4 months and 1 day to 4 years and 2 months. The minimum period is within the range of the penalty next lower in degree which is arresto mayor, the duration of which is 1 month and 1 day to 6 months. Hence, appellant should be sentenced to 6 months of arresto mayor, as minimum, to 2 years, 4

months and 1 days of prision correctional in its medium period, as maximum. In Criminal Case No. 01-189458, the quantity of the prohibited drug seized from appellant is 2.754 grams. Accordingly, the Court of Appeals correctly modified the penalty imposed by the trial court to six months of arresto mayor, as minimum, to two years, four months and one day of prision correccional, as maximum. As regards Criminal Case No. 01-189459, Section 16, Article III of RA 6425, as amended, provides for the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million upon any person who shall possess or use any regulated drug without the corresponding license or prescription. Section 20 of RA 6425, as amended, further provides that the penalty imposed for the offense under Section 16, Article III shall be applied if the dangerous drug involved is 200 grams or more of shabu. In this case, the appellant was found in illegal possession of 339.6075 grams of prohibited drug. Therefore, both the trial court and the Court of Appeals correctly imposed the penalty of reclusion perpetua and a fine of P500,000.00 to appellant. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00684 is AFFIRMED. SO ORDERED.
16. People vs. Poras (Lewd) 612 SCRA 624

17. Latorre vs. Latorre (Q of law/Q of fact) (Q=questions) 617 SCRA 88

18. Masangkay vs. People (Material Matter) 621 SCRA 231

G.R. No. 164443

June 18, 2010

ERIBERTO S. MASANGKAY, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION DEL CASTILLO, J.: Every criminal conviction must draw its strength from the prosecutions evidence. The evidence must be such that the constitutional presumption of innocence is overthrown and guilt is established beyond reasonable doubt. The prosecutorial burden is not met when the circumstances can yield to different inferences. Such equivocation betrays a lack of moral certainty to support a judgment of conviction. This Petition for Review1 assails the March 16, 2004 Decision2 and the July 9, 2004 Resolution3 of the Court of Appeals (CA) in CA-G.R. CR No. 25775. The dispositive portion of the assailed Decision reads:

WHEREFORE, the petition is DENIED, and the appealed Decision is AFFIRMED with the MODIFICATION that Eriberto Masangkay is instead meted the penalty of imprisonment for a term of Six (6) months and One (1) day of prision correccional minimum. SO ORDERED.4 Factual Antecedents Petitioner Eriberto Masangkay (Eriberto), his common-law wife Magdalena Ricaros (Magdalena), Cesar Masangkay (Cesar) and his wife Elizabeth Masangkay (Elizabeth), and Eric Dullano were the incorporators and directors of Megatel Factors, Inc. (MFI) which was incorporated in June 1990.5 On December 29, 1993 Eriberto filed with the Securities and Exchange Commission (SEC) a Petition for the Involuntary Dissolution 6 of MFI for violation of Section 6 of Presidential Decree (PD) No. 902-A. The named respondents were MFI, Cesar and Elizabeth.7 The said petition was made under oath before a notary public, and alleged among others: 3. At or around September 1, 1993, respondent Elizabeth A. Masangkay prepared or caused to be prepared a Secretarys Certificate which states: That at a special meeting of the Board of Directors of the said corporation held at its principal office on December 5, 1992, the following resolution by unanimous votes of the directors present at said meeting and constituting a quorum was approved and adopted: RESOLVED, as it is hereby resolved that Lot No. 2069-A-2 situated at Bo. Canlalay, Bian, Laguna containing an area of 3,014 square meters covered by Transfer Certificate of Title No. T-210746 be exchanged with 3,700 shares of stock of the corporation worth or valued at P370,000.00 by way of a "Deed of Exchange with Cancellation of Usufruct". xxxx 4. Said secretarys certificate is absolutely fictitious and simulated because the alleged meeting of the Board of Directors held on December 5, 1992 did not actually materialize. xxxx 5. Using the said falsified and spurious document, x x x respondents executed another fictitious document known as the "Deed of Exchange with Cancellation of Usufruct". The contract purporting to be a transfer of 3,700 shares of stock of MFI in return for a piece of a land (Lot No. 2064-A-2) located at Canlalay, Bian, Laguna and owned by minor child Gilberto Ricaros Masangkay is void. Article 1409 of the New Civil Code states: "Art. 1409. The following contracts are inexistent and void from the beginning. xxxx (2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction; xxxx These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived." The aforementioned contract is indeed simulated and fictitious because they defrauded minor child Gilberto Ricaros Masangkay and deprived him of his own property without any consideration at all. Records of the MFI revealed that minor child Gilberto Ricaros Masangkay [or] his alleged guardian Magdalena S. Ricaros never became a stockholder at any point in time of MFI. x x x x8 The case remains pending to date.9 Claiming that Eriberto lied under oath when he said that there was no meeting of the Board held on December 5, 1992 and that the Deed of Exchange with Cancellation of Usufruct is a fictitious instrument, the respondent in the SEC case, Cesar, filed a complaint for perjury10 against Eriberto before the Office of the Provincial Prosecutor of Rizal. Eriberto raised the defense of primary jurisdiction. He argued that what is involved is primarily an intra-corporate controversy; hence, jurisdiction lies with the SEC pursuant to Section 6 of PD 902-A, as amended by PD No. 1758. He also insisted that there was a prejudicial question because the truth of the allegations contained in his petition for involuntary dissolution has yet to be determined by the SEC. These defenses were sustained by the assistant provincial prosecutor and the complaint for perjury was dismissed for lack of merit.11 It was however reinstated upon petition for review 12 before the Department of Justice.13 Chief State Prosecutor Zenon L. De Guia held that the petition for involuntary dissolution is an administrative case only and thus cannot possibly constitute a prejudicial question to the criminal case. He also rejected the claim that the SEC has exclusive authority over the case. The Chief State Prosecutor explained that the prosecution and enforcement department of the SEC has jurisdiction only over criminal and civil cases involving a violation of a law, rule, or regulation that is administered and enforced by the SEC. Perjury, penalized under Article 183 of the Revised Penal Code (RPC), is not within the SECs authority.14 Thus, he ordered the conduct of a preliminary investigation, which eventually resulted in the filing of the following information: That sometime in the month of December 1992,15 in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there, willfully, unlawfully and feloniously commit acts of perjury in his Petition for Involuntary Dissolution of Megatel Factors, Inc. based on violation of Section 6 of Presidential Decree 902-A against Megatel Factors, Inc., Cesar Masangkay, Jr. and Elizabeth Masangkay which he made under oath before a notary authorized to receive and administer oath and filed with the Securities and Exchange Commission, wherein he made willful and

deliberate assertion of a falsehood on a material matter when he declared the following, to wit: a) the secretary certificate dated September 1, 1993, proposed by Elizabeth Masangkay is fictitious and simulated because the alleged December 5, 1992, meeting never took place; and, b) the Deed of Exchange with Cancellation of Usufruct is a fictitious document, whereby the respondents defrauded the minor child Gilberto Ricaros Masangkay, by exchanging the childs 3,014 square meters lot with 3, 700 shares of stock of the corporation, when in fact no consideration for the transfer was made as Gilberto Ricaros Masangkay or his guardian Magdalena Ricaros has never been a stockholder of the Corporation at any point in time, when in truth and in fact the accused well knew that the same statements he made in his petition and which he reaffirmed and made use as part of his evidence in the Securities and Exchange Commission (SEC) are false.16 The information was docketed as Criminal Case No. 56495 and raffled to the Metropolitan Trial Court (MeTC) of Mandaluyong City, Branch 59. Eriberto filed a motion to quash,17 insisting that it is the SEC which has primary jurisdiction over the case. He also argued that the truth of the allegations contained in the information is still pending resolution in SEC Case No. 12-934650, thereby constituting a prejudicial question to the perjury case. The MeTC denied the motion to quash for lack of merit. 18 It held that the fact that the parties to the criminal case are mostly stockholders of the same corporation does not automatically make the case an intra-corporate dispute that is within the SEC jurisdiction. It likewise held that the fact that the parties are stockholders is merely incidental and that the subject of the case is a criminal act and hence within the general jurisdiction of the MeTC. As regards the issue of prejudicial question, the MeTC ruled that the petition before the SEC has nothing to do with the criminal case. The truth of the statements for which he is being indicted is a matter of defense which the defendant may raise in the criminal case. Eriberto filed a petition for certiorari before Branch 158 of the Pasig City Regional Trial Court (RTC) to assail the denial of his motion to quash. The denial was affirmed.19 He then filed a petition for certiorari before the CA, which was denied for being a wrong mode of appeal.20 Failing to suspend the criminal proceedings, Eriberto entered a plea of not guilty during arraignment.21 He then waived the conduct of a pre-trial conference.22 During trial, the prosecution presented the private complainant Cesar as its sole witness.23 He testified that on December 5, 1992, a meeting of the Board of Directors was held at 9:00 oclock in the morning at the office of MFI in Canlalay, Bian, Laguna. He presented the minutes of the alleged meeting and reiterated the details contained therein indicating that the Board unanimously approved Magdalenas proposal to exchange her sons (Gilberto Masangkay [Gilberto]) property with MFI shares of stock.24 The prosecution established that one of the signatures appearing in the minutes belongs to Eriberto.25 This allegedly belies Eribertos statement that the December 5, 1992 meeting "did not actually materialize," and shows that he knew his statement to be false because he had

attended the meeting and signed the minutes thereof. The prosecution also pointed out that in the proceedings before the guardianship court to obtain approval for the exchange of properties, Eriberto had testified in support of the exchange.26 The guardianship court subsequently approved the proposed transaction.27 The resulting Deed of Exchange contained Eribertos signature as first party.28 As for Eribertos statement that the Deed of Exchange was simulated, the prosecution disputed this by again using the minutes of the December 5, 1992 meeting, which states that the property of Gilberto will be exchanged for 3,700 MFI shares. For his defense, Eriberto asserted that the December 5, 1992 meeting did not actually take place. While he admitted signing, reading and understanding the minutes of the alleged meeting, he explained that the minutes were only brought by Cesar and Elizabeth to his house for signing, but there was no actual meeting.29 To support the claim that no meeting took place in 1992, the defense presented Elizabeth, the MFI corporate secretary, who could not remember with certainty if she had sent out any notice for the December 5, 1992 meeting and could not produce any copy thereof. The defense also presented a notice of meeting dated October 19, 1993, which called for the MFI boards initial meeting "since its business operations started," to be held on November 9, 1993. Emphasizing the words "initial meeting," Eriberto argued that this proves that prior to November 9, 1993, no meeting (including the December 5, 1992 meeting) had ever taken place. As for the charge that he perjured himself when he stated that the Deed of Exchange was fictitious and simulated for lack of consideration, Eriberto explained that MFI never issued stock certificates in favor of his son Gilberto. Corporate secretary Elizabeth corroborated this statement and admitted that stock certificates were never issued to Gilberto or any of the stockholders.30 While he admitted supporting the proposed exchange and seeking its approval by the guardianship court, Eriberto maintained that he did so because he was convinced by private complainant Cesar that the exchange would benefit his son Gilberto. He however reiterated that, to date, Gilberto is not a stockholder of MFI, thus has not received any consideration for the exchange. On rebuttal, the prosecution refuted Eribertos claim that the board had its first actual meeting only on November 9, 1993. It explained that the November 9, 1993 meeting was the initial meeting "since business operations began", because MFI obtained permit to conduct business only in 1993. But the November 9, 1993 meeting was not the first meeting ever held by the board of directors. The prosecution presented the secretarys certificates of board meetings held on April 6, 199231 and September 5, 199232 -- both before November 9, 1993 and both signed by Eriberto.33 At this time, business operations have not yet begun because the companys hotel building was still under construction. The said secretarys certificates in fact show that MFI was still sourcing additional funds

for the construction of its hotel.34 Ruling of the Metropolitan Trial Court On October 18, 2000, the MeTC rendered a judgment 35 holding that the prosecution was able to prove that the December 5, 1992 meeting actually took place and that petitioner attended the same as evidenced by his signature in the minutes thereof. As for Eribertos statement that the Deed of Exchange was "fictitious," the MeTC held that his participation in the approval and execution of the document, as well as his avowals before the guardianship court regarding the proposed exchange all militate against his previous statement. Petitioner was thus found guilty as charged and sentenced to imprisonment of two months of arresto mayor minimum and medium, as minimum, to one year and one day of arresto mayor maximum and prison correccional minimum, as maximum.36 Ruling of the Regional Trial Court Eriberto appealed37 his conviction to the RTC of Mandaluyong City, Branch 213, which eventually affirmed the appealed judgment. 38 The fallo of the Decision states that: WHEREFORE, the decision of October 18, 2000 by Metropolitan Trial Court, Branch 59, Mandaluyong City, convicting the accused-appellant Eriberto S. Masangkay of the crime of perjury under Article 183 of the Revised Penal Code is hereby affirmed in toto. SO ORDERED.39 Ruling of the Court of Appeals The CA affirmed the appealed ruling of the trial courts, holding that the prosecution was able to prove that the falsehoods in the petition for involuntary dissolution were deliberately made. It explained that Eribertos signatures on the two allegedly fictitious documents show that he participated in the execution of the Deed of Exchange and was present in the December 5, 1992 meeting. Having participated in these two matters, Eriberto knew that these were not simulated and fictitious, as he claimed in his verified petition for involuntary dissolution of MFI. Thus, he deliberately lied in his petition.40 The CA rejected petitioners argument that the two statements were not material. It ruled that they were material because petitioner even cited them as principal basis for his petition for involuntary dissolution.41 The appellate court found no merit in the issue of prejudicial question. It held that the result of the petition for involuntary dissolution will not be determinative of the criminal case, which can be resolved independently.42 The CA however, corrected the imposed penalty on the ground that the trial court was imprecise in its application of the Indeterminate Sentence Law. The CA meted the penalty of imprisonment for a term of six months and one day of prision correccional minimum.43 Petitioner moved for reconsideration44 which was denied.45

Hence, this petition.46 Issues Petitioner submits the following issues for review: I Whether there was deliberate assertion of falsehood II Whether the TRUTHFUL allegation in the petition for involuntary dissolution that there was no meeting is material to the petition III Whether perjury could prosper while the main case remains pending47 Since this is a case involving a conviction in a criminal case, the issues boil down to whether the prosecution was able to prove the accuseds guilt beyond reasonable doubt. Our Ruling We rule that the prosecution failed to prove the crime of perjury beyond reasonable doubt. Article 183 of the RPC provides: False testimony in other cases and perjury in solemn affirmation. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein. For perjury to exist, (1) there must be a sworn statement that is required by law; (2) it must be made under oath before a competent officer; (3) the statement contains a deliberate assertion of falsehood; and (4) the false declaration is with regard to a material matter.48 The presence of the first two elements is not disputed by the petitioner and they are indeed present in the instant case. The sworn statements which contained the alleged falsehoods in this case were submitted in support of the petition for involuntary dissolution, as required by Sections 105 and 121 of the Corporation Code.1avvphi1 The petition was also verified by the petitioner before a notary public 49an officer duly authorized by law to administer oaths. This verification was done in compliance with Section 121 of the Corporation Code.50 It is the elements of deliberate falsehood and materiality of the false statements

to the petition for involuntary dissolution which are contested. On the element of materiality, a material matter is the main fact which is the subject of the inquiry or any fact or circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry, or which legitimately affects the credit of any witness who testifies.51 Petitioner filed a petition for involuntary dissolution of MFI based on Section 105 of the Corporate Code, which states: Section 105. Withdrawal of stockholder or dissolution of corporation. In addition and without prejudice to the other rights and remedies available to a stockholder under this Title, any stockholder of a close corporation may, for any reason, compel the said corporation to purchase his shares at their fair value, which shall not be less than their par or issued value, when the corporation has sufficient assets in his books to cover its debts and liabilities exclusive of capital stock: Provided, That any stockholder of a close corporation may, by written petition to the Securities and Exchange Commission, compel the dissolution of such corporation whenever any of the acts of the directors, officers or those in control of the corporation is illegal, or fraudulent, or dishonest, or oppressive or unfairly prejudicial to the corporation or any stockholder, or whenever corporate assets are being misapplied or wasted. He stated in his petition for involuntary dissolution that: xxxx 4. Said secretarys certificate is absolutely fictitious and simulated, because the alleged meeting of the Board of Directors held on December 5, 1992 did not actually materialize. xxxx 5. Using the said falsified and spurious document, x x x respondents executed another fictitious document known as the Deed of Exchange with Cancellation of Usufruct. xxxx The aforementioned contract is indeed simulated and fictitious because they defrauded minor child Gilberto Ricaros Masangkay and deprived him of his own property without any consideration at all. xxxx 8. The foregoing acts and deeds of the respondents, done in evident bad faith and in conspiracy with one another, are seriously fraudulent and illegal because they constitute estafa through falsification of documents, punishable under Articles 315 and 171 of the Revised Penal Code. 9. Likewise, said acts and deeds are feloniously prejudicial to the stockholders of MFI, including petitioner, as corporate assets are being misapplied and wasted. 10. MFI should therefore be ordered dissolved after appropriate

proceedings before this Honorable Commission, in accordance with Sections 105 and 121 of the New Corporation Code x x x.52 The statements for which the petitioner is tried for perjury are the very grounds he relied upon in his petition for corporate dissolution. They refer to acts of the MFI directors which are allegedly fraudulent, illegal and prejudicial, and which would allegedly justify corporate dissolution under Section 105 of the Corporation Code. Evidently, these statements are material to his petition for involuntary dissolution. The element of materiality is therefore present. The prosecution, however, failed to prove the element of deliberate falsehood. The prosecution has the burden of proving beyond reasonable doubt the falsehood of petitioners statement that the December 5, 1992 meeting "did not actually materialize." In other words, the prosecution has to establish that the said meeting in fact took place, i.e., that the directors were actually and physically present in one place at the same time and conferred with each other. To discharge this burden, the prosecution relied mainly on the minutes of the alleged December 5, 1992 meeting, signed by the accused, which are inconsistent with his statement that the December 5, 1992 meeting did not actually materialize. According to the minutes, a meeting actually took place. On the other hand, according to the petitioners statement in the petition for dissolution, the meeting did not actually materialize or take place. The two statements are obviously contradictory or inconsistent with each other. But the mere contradiction or inconsistency between the two statements merely means that one of them is false. It cannot tell us which of the two statements is actually false. The minutes could be true and the sworn statement false. But it is equally possible that the minutes are false and the sworn statement is true, as explained by the petitioner who testified that the minutes were simply brought to his house for signature, but no meeting actually transpired. Given the alternative possibilities, it is the prosecutions burden to affirmatively prove beyond reasonable doubt that the first statement (the minutes) is the true one, while the other statement (in the petition for dissolution) is the false one. We have held before that a conviction for perjury cannot be obtained by the prosecution by merely showing the inconsistent or contradictory statements of the accused, even if both statements are sworn. The prosecution must additionally prove which of the two statements is false and must show the statement to be false by evidence other than the contradictory statement. 53 The rationale for requiring evidence other than a contradictory statement is explained thus: x x x Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of his testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The two statements will simply neutralize each other; there must be some corroboration of the contradictory testimony. Such corroboration, however, may be furnished by evidence aliunde tending to show perjury independently of the declarations of testimony of the

accused.54 In this case, however, the prosecution was unable to prove, by convincing evidence other than the minutes, that the December 5, 1992 meeting actually took place. It merely presented, aside from the minutes, the testimony of private complainant Cesar, who is a respondent in the corporate dissolution case filed by the petitioner and is therefore not a neutral or disinterested witness. 55 The prosecution did not present the testimony of the other directors or participants in the alleged meeting who could have testified that the meeting actually occurred. Neither did the prosecution offer any explanation why such testimony was not presented. It likewise failed to present any evidence that might circumstantially prove that on December 5, 1992, the directors were physically gathered at a single place, and there conferred with each other and came up with certain resolutions. Notably, the prosecution failed to present the notice for the alleged meeting. The corporate secretary, Elizabeth, who was presented by the petitioner, could not even remember whether she had sent out a prior notice to the directors for the alleged December 5, 1992 meeting. The lack of certainty as to the sending of a notice raises serious doubt as to whether a meeting actually took place, for how could the directors have been gathered for a meeting if they had not been clearly notified that such a meeting would be taking place? The insufficiency of the prosecutions evidence is particularly glaring considering that the petitioner had already explained the presence of his signature in the minutes of the meeting. He testified that while the meeting did not actually take place, the minutes were brought to his house for his signature. He affixed his signature thereto because he believed that the proposed exchange of the assets, which was the subject of the minutes, would be beneficial to his child, Gilberto. Acting on this belief, he also supported the approval of the exchange by the guardianship court. Under these circumstances, we cannot say with moral certainty that the prosecution was able to prove beyond reasonable doubt that the December 5, 1992 meeting actually took place and that the petitioners statement denying the same was a deliberate falsehood. The second statement in the petition for involuntary dissolution claimed to be perjurious reads: 5. Using the said falsified and spurious document, respondents executed another fictitious document known as the Deed of Exchange with Cancellation of Usufruct. The contract purporting to be a transfer of 3,700 shares of stock of MFI in return for a piece of land (Lot No. 2064-A-2) located at Canlalay, Bian, Laguna and owned by minor child Gilberto Masangkay is void. Article 1409 of the New Civil Code states: Article 1409. The following contracts are inexistent and void from the beginning: xxxx (2) those which are absolutely simulated or fictitious;

(3) those whose cause or object did not exist at the time of the transaction; xxxx These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived. The aforementioned contract is indeed simulated and fictitious because they defrauded minor child Gilberto Ricaros Masangkay and deprived him of his own property without any consideration at all. Records of the MFI revealed that minor child Gilberto Ricaros Masangkay [or] his alleged guardian Magdalena S. Ricaros never became a stockholder at any point in time of MFI. In short, the petitioner is being charged with deliberate falsehood for his statement that the deed of exchange is fictitious. To support the accusation, the prosecution proved that petitioner assented to the said Deed of Exchange by virtue of his signatures in the minutes of the alleged December 5, 1992 meeting and on the instrument itself, and his participation in procuring the guardianship courts approval of the transaction. These allegedly show that the exchange was not fictitious and that Eriberto knew it. We cannot agree with this line of reasoning. Petitioners imputation of fictitiousness to the Deed of Exchange should not be taken out of context. He explained in paragraph 5 of his petition for involuntary dissolution that the Deed of Exchange is simulated and fictitious pursuant to Article 1409 of the Civil Code, because it deprived Gilberto Masangkay of his property without any consideration at all. To justify his allegation that Gilberto did not receive anything for the exchange, he stated in the same paragraph that Gilberto never became a stockholder of MFI (MFI stocks were supposed to be the consideration for Gilbertos land). This fact was subsequently proven by the petitioner through the corporate secretary Elizabeth, who admitted that MFI never issued stocks in favor of the stockholders. This testimony was never explained or rebutted by the prosecution. Thus, petitioners statement that the exchange was "simulated and fictitious x x x because they x x x deprived [Gilberto] of his own property without any consideration at all" cannot be considered a deliberate falsehood. It is simply his characterization of the transaction, based on the fact that Gilberto did not receive consideration for the exchange of his land. As importantly, petitioners statements in paragraph 5 of the petition for involuntary dissolution about the nature of the Deed of Exchange are conclusions of law, and not factual statements which are susceptible of truth or falsity. They are his opinion regarding the legal character of the Deed of Exchange. He opined that the Deed of Exchange was fictitious or simulated under Article 1409 of the Civil Code, because MFI supposedly did not perform its reciprocal obligation to issue stocks to Gilberto in exchange for his land. His opinion or legal conclusion may have been wrong (as failure of consideration does not make a contract simulated or fictitious),56 but it is an opinion or legal conclusion nevertheless. An opinion or a judgment cannot be taken as an intentional false statement of facts.57

We recognize that perjury strikes at the very administration of the laws; that it is the policy of the law that judicial proceedings and judgments shall be fair and free from fraud; that litigants and parties be encouraged to tell the truth, and that they be punished if they do not. 58 However, it is also at the heart of every criminal proceeding that every person is presumed innocent until proven guilty beyond reasonable doubt. Given the foregoing findings, there is no more need to discuss the issue involving the propriety of proceeding with the perjury case while the civil case for corporate dissolution is pending. WHEREFORE, the petition is GRANTED. The assailed March 16, 2004 Decision of the Court of Appeals in CA-G.R. GR No. 25775 and its July 9, 2004 Resolution, are REVERSED and SET ASIDE. Petitioner Eriberto S. Masangkay is ACQUITTED of the charge of perjury on the ground of REASONABLE DOUBT. SO ORDERED.
19. Meralco vs. Chua (Inflagrante Delicto) 623 SCRA 81

20. Olazo vs. Tinga (Practice of Law) 637 SCRA 1

A.M. No. 10-5-7-SC

December 7, 2010

JOVITO S. OLAZO, Complainant, vs. JUSTICE DANTE O. TINGA (Ret.), Respondent. DECISION BRION, J.: Before us is the disbarment case against retired Supreme Court Associate Justice Dante O. Tinga (respondent) filed by Mr. Jovito S. Olazo (complainant). The respondent is charged of violating Rule 6.02,1 Rule 6.032 and Rule 1.013 of the Code of Professional Responsibility for representing conflicting interests. Factual Background In March 1990, the complainant filed a sales application covering a parcel of land situated in Barangay Lower Bicutan in the Municipality of Taguig. The land (subject land) was previously part of Fort Andres Bonifacio that was segregated and declared open for disposition pursuant to Proclamation No. 2476, 4 issued on January 7, 1986, and Proclamation No. 172,5 issued on October 16, 1987. To implement Proclamation No. 172, Memorandum No. 119 was issued by then Executive Secretary Catalino Macaraig, creating a Committee on Awards whose duty was to study, evaluate, and make a recommendation on the applications to purchase the lands declared open for disposition. The Committee on Awards was headed by the Director of Lands and the respondent was one of the Committee

members, in his official capacity as the Congressman of Taguig and Pateros (from 1987 to 1998); the respondents district includes the areas covered by the proclamations. The First Charge: Violation of Rule 6.02 In the complaint,6 the complainant claimed that the respondent abused his position as Congressman and as a member of the Committee on Awards when he unduly interfered with the complainants sales application because of his personal interest over the subject land. The complainant alleged that the respondent exerted undue pressure and influence over the complainants father, Miguel P. Olazo, for the latter to contest the complainants sales application and claim the subject land for himself. The complainant also alleged that the respondent prevailed upon Miguel Olazo to accept, on various dates, sums of money as payment of the latters alleged rights over the subject land. The complainant further claimed that the respondent brokered the transfer of rights of the subject land between Miguel Olazo and Joseph Jeffrey Rodriguez, who is the nephew of the respondents deceased wife. As a result of the respondents abuse of his official functions, the complainants sales application was denied. The conveyance of rights to Joseph Jeffrey Rodriguez and his sales application were subsequently given due course by the Department of Environment and Natural Resources (DENR). The Second Charge: Violation of Rule 6.03 The second charge involves another parcel of land within the proclaimed areas belonging to Manuel Olazo, the complainants brother. The complainant alleged that the respondent persuaded Miguel Olazo to direct Manuel to convey his rights over the land to Joseph Jeffrey Rodriguez. As a result of the respondents promptings, the rights to the land were transferred to Joseph Jeffrey Rodriguez. In addition, the complainant alleged that in May 1999, the respondent met with Manuel for the purpose of nullifying the conveyance of rights over the land to Joseph Jeffrey Rodriguez. The complainant claimed that the respondent wanted the rights over the land transferred to one Rolando Olazo, the Barangay Chairman of Hagonoy, Taguig. The respondent in this regard executed an "Assurance" where he stated that he was the lawyer of Ramon Lee and Joseph Jeffrey Rodriguez. The Third Charge: Violation of Rule 1.01 The complainant alleged that the respondent engaged in unlawful conduct considering his knowledge that Joseph Jeffrey Rodriguez was not a qualified beneficiary under Memorandum No. 119. The complainant averred that Joseph Jeffrey Rodriguez is not a bona fide resident of the proclaimed areas and does not qualify for an award. Thus, the approval of his sales application by the Committee on Awards amounted to a violation of the objectives of Proclamation No. 172 and Memorandum No. 119. The complainant also alleged that the respondent violated Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act (R.A.) No. 6713 since he engaged in the practice of law, within the

one-year prohibition period, when he appeared as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee on Awards. In his Comment,7 the respondent claimed that the present complaint is the third malicious charge filed against him by the complainant. The first one was submitted before the Judicial and Bar Council when he was nominated as an Associate Justice of the Supreme Court; the second complaint is now pending with the Office of the Ombudsman, for alleged violation of Section 3(e) and (i) of R.A. No. 3019, as amended. With his own supporting documents, the respondent presented a different version of the antecedent events. The respondent asserted that Miguel Olazo owned the rights over the subject land and he later conveyed these rights to Joseph Jeffrey Rodriguez. Miguel Olazos rights over the subject land and the transfer of his rights to Joseph Jeffrey Rodriguez were duly recognized by the Secretary of the DENR before whom the conflict of rights over the subject land (between Miguel Olazo and Joseph Jeffrey Rodriguez, on one hand, and the complainant on the other hand) was brought. In its decision, the DENR found Joseph Jeffrey Rodriguez a qualified applicant, and his application over the subject land was given due course. The respondent emphasized that the DENR decision is now final and executory. It was affirmed by the Office of the President, by the Court of Appeals and by the Supreme Court. The respondent also advanced the following defenses: (1) He denied the complainants allegation that Miguel Olazo told him (complainant) that the respondent had been orchestrating to get the subject land. The respondent argued that this allegation was without corroboration and was debunked by the affidavits of Miguel Olazo and Francisca Olazo, the complainants sister. (2) He denied the complainants allegation that he offered the complainant P50,000.00 for the subject land and that he (the respondent) had exerted undue pressure and influence on Miguel Olazo to claim the rights over the subject land. The respondent also denied that he had an inordinate interest in the subject land. (3) He claimed that there was nothing wrong in signing as a witness in Miguel Olazos affidavit where the latter asserted his rights over the subject land. The affidavit merely attested to the truth. (4) He asserted that he and Miguel Olazo were cousins and that the latter decided to sell his rights over the subject land for the medical treatment of his heart condition and the illness of his daughter, Francisca Olazo. The respondent insisted that the money he extended to them was a form of loan. (5) The respondents participation in the transaction between Miguel Olazo and Joseph Jeffrey Rodriguez involved the payment of the loan that the respondent extended to Miguel Olazo. (6) Manuels belated and secondhand allegation in his Sinumpaang

Salaysay, dated January 20, 2000, regarding what his father told him, cannot prevail over his earlier Sinumpaang Salaysay with Francisca Olazo, dated August 2, 1997. In the said Sinumpaang Salaysay, Manuel categorically asserted that his father Miguel Olazo, not the complainant, was the farmer-beneficiary. Manuel also expressed his agreement to the transfer of rights (Pagpapatibay Sa Paglilipat Ng Karapatan) in favor of Joseph Jeffrey Rodriguez, and the withdrawal of his fathers application to give way to Joseph Jeffrey Rodriguezs application. (7) The complainants allegation that the respondent had pressured and influenced Miguel Olazo to sell the subject land was not sufficient as it was lacking in specificity and corroboration. The DENR decision was clear that the complainant had no rights over the subject land. The respondent additionally denied violating Rule 1.01 of the Code of Professional Responsibility. He alleged that during his third term as Congressman from 1995 to 1997, the conflicting applications of the complainant, Miguel Olazo and Joseph Jeffrey Rodriguez were not included in the agenda for deliberation of the Committee on Awards. Rather, their conflicting claims and their respective supporting documents were before the Office of the Regional Director, NCR of the DENR. This office ruled over the conflicting claims only on August 2, 2000. This ruling became the basis of the decision of the Secretary of the DENR. Similarly, the respondent cannot be held liable under Rule 6.02 of the Code of Professional Responsibility since the provision applies to lawyers in the government service who are allowed by law to engage in private law practice and to those who, though prohibited from engaging in the practice of law, have friends, former associates and relatives who are in the active practice of law. 8 In this regard, the respondent had already completed his third term in Congress and his stint in the Committee on Awards when he represented Joseph Jeffrey Rodriguez on May 24, 1999. Lastly, the respondent claimed that he cannot be held liable under Rule 6.03 of the Code of Professional Responsibility since he did not intervene in the disposition of the conflicting applications of the complainant and Joseph Jeffrey Rodriguez because the applications were not submitted to the Committee on Awards when he was still a member. The Courts Ruling Generally, a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official.9 He may be disciplined by this Court as a member of the Bar only when his misconduct also constitutes a violation of his oath as a lawyer.10 The issue in this case calls for a determination of whether the respondents actions constitute a breach of the standard ethical conduct first, while the respondent was still an elective public official and a member of the Committee on Awards; and second, when he was no longer a public official, but a private lawyer who represented a client before the office he was previously connected with.

After a careful evaluation of the pleadings filed by both parties and their respective pieces of evidence, we resolve to dismiss the administrative complaint. Accountability of a government lawyer in public office Canon 6 of the Code of Professional Responsibility highlights the continuing standard of ethical conduct to be observed by government lawyers in the discharge of their official tasks. In addition to the standard of conduct laid down under R.A. No. 6713 for government employees, a lawyer in the government service is obliged to observe the standard of conduct under the Code of Professional Responsibility. Since public office is a public trust, the ethical conduct demanded upon lawyers in the government service is more exacting than the standards for those in private practice. Lawyers in the government service are subject to constant public scrutiny under norms of public accountability. They also bear the heavy burden of having to put aside their private interest in favor of the interest of the public; their private activities should not interfere with the discharge of their official functions.11 The first charge involves a violation of Rule 6.02 of the Code of Professional Responsibility. It imposes the following restrictions in the conduct of a government lawyer: A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. The above provision prohibits a lawyer from using his or her public position to: (1) promote private interests; (2) advance private interests; or (3) allow private interest to interfere with his or her public duties. We previously held that the restriction extends to all government lawyers who use their public offices to promote their private interests.12 In Huyssen v. Gutierrez,13 we defined promotion of private interest to include soliciting gifts or anything of monetary value in any transaction requiring the approval of his or her office, or may be affected by the functions of his or her office. In Ali v. Bubong,14 we recognized that private interest is not limited to direct interest, but extends to advancing the interest of relatives. We also ruled that private interest interferes with public duty when the respondent uses the office and his or her knowledge of the intricacies of the law to benefit relatives.15 In Vitriolo v. Dasig,16 we found the act of the respondent (an official of the Commission on Higher Education) of extorting money from persons with applications or requests pending before her office to be a serious breach of Rule 6.02 of the Code of Professional Responsibility. 17 We reached the same conclusion in Huyssen, where we found the respondent (an employee of the Bureau of Immigration and Deportation) liable under Rule 6.02 of the Code of Professional Responsibility, based on the evidence showing that he demanded money from the complainant who had a pending application for visas before his office.18

Similarly, in Igoy v. Soriano19 we found the respondent (a Court Attorney of this Court) liable for violating Rule 6.02 of the Code of Professional Responsibility, after considering the evidence showing that he demanded and received money from the complainant who had a pending case before this Court. Applying these legal precepts to the facts of the case, we find the absence of any concrete proof that the respondent abused his position as a Congressman and as a member of the Committee on Awards in the manner defined under Rule 6.02 of the Code of Professional Responsibility. First, the records do not clearly show if the complainants sales application was ever brought before the Committee on Awards. By the complaints own account, the complainant filed a sales application in March 1990 before the Land Management Bureau. By 1996, the complainants sales application was pending before the Office of the Regional Director, NCR of the DENR due to the conflicting claims of Miguel Olazo, and, subsequently, of Joseph Jeffrey Rodriguez. The records show that it was only on August 2, 2000 that the Office of the Regional Director, NCR of the DENR rendered its decision, or after the term of the respondents elective public office and membership to the Committee on Awards, which expired in 1997. These circumstances do not show that the respondent did in any way promote, advance or use his private interests in the discharge of his official duties. To repeat, since the sales application was not brought before the Committee on Awards when the respondent was still a member, no sufficient basis exists to conclude that he used his position to obtain personal benefits. We note in this regard that the denial of the complainants sales application over the subject land was made by the DENR, not by the Committee on Awards. Second, the complainants allegation that the respondent "orchestrated" the efforts to get the subject land does not specify how the orchestration was undertaken. What appears clear in the records is the uncorroborated Sinumpaang Salaysay of Miguel Olazo, dated May 25, 2003, 20 categorically stating that the respondent had no interest in the subject land, and neither was he a contracting party in the transfer of his rights over the subject land. In the absence of any specific charge, Olazos disclaimer is the nearest relevant statement on the respondents alleged participation, and we find it to be in the respondents favor. Third, the other documents executed by Miguel Olazo, that the complainant presented to support his claim that the respondent exerted undue pressure and influence over his father (namely: the letter, dated June 22, 1996, to the DENR Regional Director-NCR;21 the Sinumpaang Salaysay dated July 12, 1996;22 and the Sinumpaang Salaysay dated July 17, 1996 23), do not contain any reference to the alleged pressure or force exerted by the respondent over Miguel Olazo. The documents merely showed that the respondent helped Miguel Olazo in having his farm lots (covered by the proclaimed areas) surveyed. They also showed that the respondent merely acted as a witness in the Sinumpaang Salaysay dated July 17, 1996. To our mind, there are neutral acts that may be rendered by one relative to another, and do not show how the respondent could have influenced the decision

of Miguel Olazo to contest the complainants sales application. At the same time, we cannot give any credit to the Sinumpaang Salaysay, dated January 20, 2000, of Manuel. They are not only hearsay but are contrary to what Miguel Olazo states on the record. We note that Manuel had no personal knowledge, other than what Miguel Olazo told him, of the force allegedly exerted by the respondent against Miguel Olazo. In turn, the respondent was able to provide a satisfactory explanation - backed by corroborating evidence - of the nature of the transaction in which he gave the various sums of money to Miguel Olazo and Francisca Olazo in the year 1995. In her affidavits dated May 25, 2003 24 and July 21, 2010,25 Francisca Olazo corroborated the respondents claim that the sums of money he extended to her and Miguel Olazo were loans used for their medical treatment. Miguel Olazo, in his Sinumpaang Salaysay dated May 25, 2003, asserted that some of the money borrowed from the respondent was used for his medical treatment and hospitalization expenses. The affidavit of Joseph Jeffrey Rodriguez further corroborated the respondents claim that the latters involvement was limited to being paid the loans he gave to Miguel Olazo and Francisca Olazo. According to Joseph Jeffrey Rodriguez, he and Miguel Olazo agreed that a portion of the loan would be directly paid by Joseph Jeffrey Rodriguez to the respondent and the amount paid would be considered as part of the purchase price of the subject land.26 It also bears stressing that a facial comparison of the documentary evidence, specifically the dates when the sums of money were extended by the respondent on February 21, 1995, September 2, 1995 and October 17, 1995, and the date when the Deed of Conveyance27 over the subject land was executed or on October 25, 1995, showed that the sums of money were extended prior to the transfer of rights over the subject land. These pieces of evidence are consistent with the respondents allegation that Miguel Olazo decided to sell his rights over the subject land to pay the loans he obtained from the respondent and, also, to finance his continuing medical treatment. Private practice of law after separation from public office As proof that the respondent was engaged in an unauthorized practice of law after his separation from the government service, the complainant presented the Sinumpaang Salaysay, dated January 20, 2000, of Manuel and the document entitled "Assurance" where the respondent legally represented Ramon Lee and Joseph Jeffrey Rodriguez. Nevertheless, the foregoing pieces of evidence fail to persuade us to conclude that there was a violation of Rule 6.03 of the Code of Professional Responsibility. In Cayetano v. Monsod,28 we defined the practice of law as any activity, in and out of court, that requires the application of law, legal procedure, knowledge, training and experience. Moreover, we ruled that to engage in the practice of law is to perform those acts which are characteristics of the profession; to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill. Under the circumstances, the foregoing definition should be correlated with R.A.

No. 6713 and Rule 6.03 of the Code of Professional Responsibility which impose certain restrictions on government lawyers to engage in private practice after their separation from the service. Section 7(b)(2) of R.A. No. 6713 reads: Section 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: xxxx (b) Outside employment and other activities related thereto. Public officials and employees during their incumbency shall not: xxxx (2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; x x x These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply. As a rule, government lawyers are not allowed to engage in the private practice of their profession during their incumbency.29 By way of exception, a government lawyer can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict or tend to conflict with his or her official functions.30 The last paragraph of Section 7 provides an exception to the exception. In case of lawyers separated from the government service who are covered under subparagraph (b) (2) of Section 7 of R.A. No. 6713, a one-year prohibition is imposed to practice law in connection with any matter before the office he used to be with. Rule 6.03 of the Code of Professional Responsibility echoes this restriction and prohibits lawyers, after leaving the government service, to accept engagement or employment in connection with any matter in which he had intervened while in the said service. The keyword in Rule 6.03 of the Code of Professional Responsibility is the term "intervene" which we previously interpreted to include an act of a person who has the power to influence the proceedings. 31 Otherwise stated, to fall within the ambit of Rule 6.03 of the Code of Professional Responsibility, the respondent must have accepted engagement or employment in a matter which, by virtue of his public office, he had previously exercised power to influence the outcome of the proceedings.1avvphi1 As the records show, no evidence exists showing that the respondent previously interfered with the sales application covering Manuels land when the former was still a member of the Committee on Awards. The complainant, too, failed to

sufficiently establish that the respondent was engaged in the practice of law. At face value, the legal service rendered by the respondent was limited only in the preparation of a single document. In Borja, Sr. v. Sulyap, Inc., 32 we specifically described private practice of law as one that contemplates a succession of acts of the same nature habitually or customarily holding ones self to the public as a lawyer. In any event, even granting that respondents act fell within the definition of practice of law, the available pieces of evidence are insufficient to show that the legal representation was made before the Committee on Awards, or that the Assurance was intended to be presented before it. These are matters for the complainant to prove and we cannot consider any uncertainty in this regard against the respondents favor. Violation of Rule 1.01 Rule 1.01 prohibits a lawyer from engaging in unlawful, immoral or deceitful conduct. From the above discussion, we already struck down the complainants allegation that respondent engaged in an unauthorized practice of law when he appeared as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee on Awards. We find that a similar treatment should be given to the complainants claim that the respondent violated paragraph 4(1)33 of Memorandum No. 119 when he encouraged the sales application of Joseph Jeffrey Rodriguez despite his knowledge that his nephew was not a qualified applicant. The matter of Joseph Jeffrey Rodriguezs qualifications to apply for a sales application over lots covered by the proclaimed areas has been resolved in the affirmative by the Secretary of the DENR in the decision dated April 3, 2004, 34 when the DENR gave due course to his sales application over the subject land. We are, at this point, bound by this finding. As pointed out by the respondent, the DENR decision was affirmed by the Office of the President, the Court of Appeals35 and, finally, the Court, per our Minute Resolution, dated October 11, 2006, in G.R. No. 173453. In our Resolution, we dismissed the petition for review on certiorari filed by the complainant after finding, among others, that no reversible error was committed by the Court of Appeals in its decision.36 All told, considering the serious consequences of the penalty of disbarment or suspension of a member of the Bar, the burden rests on the complainant to present clear, convincing and satisfactory proof for the Court to exercise its disciplinary powers.37 The respondent generally is under no obligation to prove his/her defense,38 until the burden shifts to him/her because of what the complainant has proven. Where no case has in the first place been proven, nothing has to be rebutted in defense.39 With this in mind, we resolve to dismiss the administrative case against the respondent for the complainants failure to prove by clear and convincing evidence that the former committed unethical infractions warranting the exercise of the Courts disciplinary power.

WHEREFORE, premises considered, we DISMISS the administrative case for violation of Rule 6.02, Rule 6.03 and Rule 1.01 of the Code of Professional Responsibility, filed against retired Supreme Court Associate Justice Dante O. Tinga, for lack of merit. SO ORDERED.
21. Ang Ladlad LGBT vs. COMELEC (Yogyakarta Principles) 618 SCRA 32

G.R. No. 190582

April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, vs. COMMISSION ON ELECTIONS Respondent. DECISION DEL CASTILLO, J.: ... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Justice Robert A. Jackson West Virginia State Board of Education v. Barnette1 One unavoidable consequence of everyone having the freedom to choose is that others may make different choices choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion. Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly. Factual Background This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections

(COMELEC) dated November 11, 2009 2 (the First Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4 Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the COMELEC. Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections. 6 Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and outlined its platform of governance.7 On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that: x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus: x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity. and proceeded to define sexual orientation as that which: x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender." This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote: For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet. In the Koran, the hereunder verses are pertinent: For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008: The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah). Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation. ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission, establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregards decency or morality x x x It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and void from the beginning. Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows: Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: 1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals; 2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts. 3. Those who shall sell, give away or exhibit films, prints, engravings,

sculpture or literature which are offensive to morals. Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect our youth from moral and spiritual degradation.8 When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that: I. The Spirit of Republic Act No. 7941 Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its under-representation and marginalization, it cannot be said that Ladlads expressed sexual orientations per se would benefit the nation as a whole. Section 2 of the party-list law unequivocally states that the purpose of the partylist system of electing congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nations only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that. II. No substantial differentiation In the United States, whose equal protection doctrine pervades Philippine

jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual relations," as in the case of race or religion or belief. xxxx Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike. xxxx IV. Public Morals x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly accepted moral norms. V. Legal Provisions But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its Petitions paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of age It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x x which shocks, defies or disregards decency or morality x x x." These are all unlawful.10 On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010. On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment. 12

Somewhat surprisingly, the OSG later filed a Comment in support of petitioners application.13 Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own comment. 14 The COMELEC, through its Law Department, filed its Comment on February 2, 2010.15 In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions.16 Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the denial of Ang Ladlads petition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to intervene. On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene 18 which motion was granted on February 2, 2010.19 The Parties Arguments Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines international obligations against discrimination based on sexual orientation. The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a separate classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these rights. In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs field personnel. Our Ruling We grant the petition. Compliance with the Requirements of the Constitution and Republic Act No.

7941 The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration. Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections ,20 "the enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that "save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country."21 This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondents theory, and a serious violation of petitioners right to procedural due process. Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group. 22 Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks:" Abra Gay Association Aklan Butterfly Brigade (ABB) Aklan Albay Gay Association Arts Center of Cabanatuan City Nueva Ecija Boys Legion Metro Manila

 Cagayan de Oro People Like Us (CDO PLUS) Cant Live in the Closet, Inc. (CLIC) Metro Manila Cebu Pride Cebu City Circle of Friends Dipolog Gay Association Zamboanga del Norte Gay, Bisexual, & Transgender Youth Association (GABAY) Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila Gay Mens Support Group (GMSG) Metro Manila Gay United for Peace and Solidarity (GUPS) Lanao del Norte Iloilo City Gay Association Iloilo City Kabulig Writers Group Camarines Sur Lesbian Advocates Philippines, Inc. (LEAP) LUMINA Baguio City Marikina Gay Association Metro Manila Metropolitan Community Church (MCC) Metro Manila Naga City Gay Association Naga City ONE BACARDI Order of St. Aelred (OSAe) Metro Manila PUP LAKAN RADAR PRIDEWEAR Rainbow Rights Project (R-Rights), Inc. Metro Manila San Jose del Monte Gay Association Bulacan Sining Kayumanggi Royal Family Rizal Society of Transexual Women of the Philippines (STRAP) Metro Manila Soul Jive Antipolo, Rizal The Link Davao City Tayabas Gay Association Quezon Womens Bisexual Network Metro Manila Zamboanga Gay Association Zamboanga City23 Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof. Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is "government neutrality in religious matters."24 Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality." 25 We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor:26 x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.1avvphi1 In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a

uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.27 Public Morals as a Ground to Deny Ang Ladlads Petition for Registration Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues: Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set of moral precepts is in danger of losing its own existence.28 We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly transplanted into the realm of law.29 The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the groups members have committed or are committing immoral acts."30 The OSG argues: x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against both the "straights" and the gays." Certainly this is not the intendment of the law.31 Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society.

We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny. We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality," the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. 32 A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability. As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause. Equal Protection Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar persons." 33 The equal protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances.34 Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as long as it bears a rational relationship to some legitimate government end. 35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, 36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution."37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group. From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors. It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves for the purposes of the equal protection clause.38 We are not prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the case." Freedom of Expression and Association Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal democratic means.39 It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:40 In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle

in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies including protection of religious freedom "not only for a minority, however small not only for a majority, however large but for each of us" the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities. Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning ones homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well. Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41 European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts. 42 To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis. In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."43 With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas may seem shocking or unacceptable to the

authorities or the majority of the population. 44 A political group should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned. 45 Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of the freedom of association guarantee.46 We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision. The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that: There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4, Article III of the Constitution. xxxx A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionallyguaranteed right which cannot be limited. As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to fully and equally participate in public life through engagement in the party list elections. This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. x x x47 The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and as advanced by the OSG itself the

moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELECs action, from publicly expressing its views as a political party and participating on an equal basis in the political process with other equallyqualified party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights. Non-Discrimination and International Law In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct. Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR. The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows: Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual orientation."48 Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.49 The UDHR provides: Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Likewise, the ICCPR states: Article 25 Every citizen shall have the right and the opportunity, without any of the

distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows: 1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant. xxxx 15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office.50 We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),51 which petitioner declares to reflect binding principles of international law. At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.52 Petitioner has not undertaken any objective and

rigorous analysis of these alleged principles of international law to ascertain their true status. We also hasten to add that not everything that society or a certain segment of society wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial.1avvphi1 Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are at best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.53 As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate. WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners application for party-list accreditation. SO ORDERED.