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EQUAL PROTECTION
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45987 May 5, 1939
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CAYAT, defendant-appellant.
Sinai Hamada y Cario for appellant.
Office of the Solicitor-General Tuason for appellee.
MORAN, J.:
Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the accused, Cayat, a native of Baguio,
Benguet, Mountain Province, was sentenced by the justice of the peace court of Baguio to pay a
fine of five pesos (P5) or suffer subsidiary imprisonment in case of insolvency. On appeal of the
Court of First Instance, the following information was filed against him:
That on or about the 25th day of January, 1937, in the City of Baguio, Commonwealth of
the Philippines, and within the jurisdiction of this court, the above-named accused,
Cayat, being a member of the non-Christian tribes, did then and there wilfully,
unlawfully, and illegally receive, acquire, and have in his possession and under his
control or custody, one bottle of A-1-1 gin, an intoxicating liquor, other than the so-called
native wines and liquors which the members of such tribes have been accustomed
themselves to make prior to the passage of Act No. 1639.
Accused interposed a demurrer which was overruled. At the trial, he admitted all the facts
alleged in the information, but pleaded not guilty to the charge for the reasons adduced in his
demurrer and submitted the case on the pleadings. The trial court found him guilty of the crime
charged and sentenced him to pay a fine of fifty pesos (P50) or supper subsidiary imprisonment
in case of insolvency. The case is now before this court on appeal. Sections 2 and 3 of Act No.
1639 read:
SEC. 2. It shall be unlawful for any native of the Philippine Islands who is a member of a
non-Christian tribe within the meaning of the Act Numbered Thirteen hundred and
ninety-seven, to buy, receive, have in his possession, or drink any ardent spirits, ale,
beer, wine, or intoxicating liquors of any kind, other than the so-called native wines and
liquors which the members of such tribes have been accustomed themselves to make
prior to the passage of this Act, except as provided in section one hereof; and it shall be
the duty of any police officer or other duly authorized agent of the Insular or any
provincial, municipal or township government to seize and forthwith destroy any such
liquors found unlawfully in the possession of any member of a non-Christian tribe.
SEC. 3. Any person violating the provisions of section one or section two of this Act shall,
upon conviction thereof, be punishable for each offense by a fine of not exceeding two
hundred pesos or by imprisonment for a term not exceeding six months, in the discretion
of the court.
2

The accused challenges the constitutionality of the Act on the following grounds:
(1) That it is discriminatory and denies the equal protection of the laws;
(2) That it is violative of the due process clause of the Constitution: and.
(3) That it is improper exercise of the police power of the state.
Counsel for the appellant holds out his brief as the "brief for the non-Christian tribes." It is said
that as these less civilized elements of the Filipino population are "jealous of their rights in a
democracy," any attempt to treat them with discrimination or "mark them as inferior or less
capable rate or less entitled" will meet with their instant challenge. As the constitutionality of the
Act here involved is questioned for purposes thus mentioned, it becomes imperative to examine
and resolve the issues raised in the light of the policy of the government towards the non-
Christian tribes adopted and consistently followed from the Spanish times to the present, more
often with sacrifice and tribulation but always with conscience and humanity.
As early as 1551, the Spanish Government had assumed an unvarying solicitous attitude toward
these inhabitants, and in the different laws of the Indies, their concentration in so-called
"reducciones" (communities) have been persistently attempted with the end in view of according
them the "spiritual and temporal benefits" of civilized life. Throughout the Spanish regime, it had
been regarded by the Spanish Government as a sacred "duty to conscience and humanity" to
civilize these less fortunate people living "in the obscurity of ignorance" and to accord them the
"the moral and material advantages" of community life and the "protection and vigilance afforded
them by the same laws." (Decree of the Governor-General of the Philippines, Jan. 14, 1887.) This
policy had not been deflected from during the American period. President McKinley in his
instructions to the Philippine Commission of April 7, 1900, said:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt the
same course followed by Congress in permitting the tribes of our North American Indians
to maintain their tribal organization and government, and under which many of those
tribes are now living in peace and contentment, surrounded by civilization to which they
are unable or unwilling to conform. Such tribal government should, however, be
subjected to wise and firm regulation; and, without undue or petty interference, constant
and active effort should be exercised to prevent barbarous practices and introduce
civilized customs.
Since then and up to the present, the government has been constantly vexed with the problem of
determining "those practicable means of bringing about their advancement in civilization and
material prosperity." (See, Act No. 253.) "Placed in an alternative of either letting them alone or
guiding them in the path of civilization," the present government "has chosen to adopt the latter
measure as one more in accord with humanity and with the national conscience." (Memorandum
of Secretary of the Interior, quoted in Rubi vs. Provincial Board of Mindoro, 39 Phil., 660, 714.)
To this end, their homes and firesides have been brought in contact with civilized communities
through a network of highways and communications; the benefits of public education have to
them been extended; and more lately, even the right of suffrage. And to complement this policy of
attraction and assimilation, the Legislature has passed Act No. 1639 undoubtedly to secure for
them the blessings of peace and harmony; to facilitate, and not to mar, their rapid and steady
march to civilization and culture. It is, therefore, in this light that the Act must be understood
and applied.
It is an established principle of constitutional law that the guaranty of the equal protection of the
laws is not equal protection of the laws is not violated by a legislation based on reasonable
classification. And the classification, to be reasonable, (1) must rest on substantial distinctions;
(2) must be germane to the purposes of the law; (3) must not be limited to existing conditions
3

only; and (4) must apply equally to all members of the same class. (Borgnis vs.Falk Co., 133
N.W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U.S. 61; 55 Law. ed., Rubi vs. Provincial
Board of Mindoro, 39 Phil., 660; People and Hongkong & Shanghai Banking Corporation vs. Vera
and Cu Unjieng, 37 Off. Gaz ., 187.)
Act No. 1639 satisfies these requirements. The classification rests on real and substantial, not
merely imaginary or whimsical, distinctions. It is not based upon "accident of birth or parentage,"
as counsel to the appellant asserts, but upon the degree of civilization and culture. "The term
'non-Christian tribes' refers, not to religious belief, but, in a way, to the geographical area, and,
more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in
tribal relationship apart from settled communities." (Rubi vs. Provincial Board of
Mindoro, supra.) This distinction is unquestionably reasonable, for the Act was intended to meet
the peculiar conditions existing in the non-Christian tribes. The exceptional cases of certain
members thereof who at present have reached a position of cultural equality with their Christian
brothers, cannot affect the reasonableness of the classification thus established.
That it is germane to the purposes of law cannot be doubted. The prohibition "to buy, receive,
have in his possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of any
kind, other than the so-called native wines and liquors which the members of such tribes have
been accustomed themselves to make prior to the passage of this Act.," is unquestionably
designed to insure peace and order in and among the non-Christian tribes. It has been the sad
experience of the past, as the observations of the lower court disclose, that the free use of highly
intoxicating liquors by the non-Christian tribes have often resulted in lawlessness and crimes,
thereby hampering the efforts of the government to raise their standard of life and civilization.
The law is not limited in its application to conditions existing at the time of its enactment. It is
intended to apply for all times as long as those conditions exist. The Act was not predicated, as
counsel for appellant asserts, upon the assumption that the non-Christians are "impermeable to
any civilizing influence." On the contrary, the Legislature understood that the civilization of a
people is a slow process and that hand in hand with it must go measures of protection and
security.
Finally, that the Act applies equally to all members of the class is evident from a perusal thereof.
That it may be unfair in its operation against a certain number non-Christians by reason of their
degree of culture, is not an argument against the equality of its application.
Appellants contends that that provision of the law empowering any police officer or other duly
authorized agent of the government to seize and forthwith destroy any prohibited liquors found
unlawfully in the possession of any member of the non-Christian tribes is violative of the due
process of law provided in the Constitution. But this provision is not involved in the case at bar.
Besides, to constitute due process of law, notice and hearing are not always necessary. This rule
is especially true where much must be left to the discretion of the administrative officials in
applying a law to particular cases. (McGehee, Due Process of Law p. 371, cited with approval in
Rubivs. Provincial Board of Mindoro, supra.) Due process of law means simply: (1) that there
shall be a law prescribed in harmony with the general powers of the legislative department of the
government; (2) that it shall be reasonable in its operation; (3) that it shall be enforced according
to the regular methods of procedure prescribed; and (4) that it shall be applicable alike to all
citizens of the state or to all of the class. (U.S. vs. Ling Su Fan, 10 Phil., 104, affirmed on appeal
by the United States Supreme Court, 218 U.S., 302: 54 Law. ed., 1049.) Thus, a person's
property may be seized by the government in payment of taxes without judicial hearing; or
property used in violation of law may be confiscated (U.S. vs. Surla, 20 Phil., 163, 167), or when
the property constitutes corpus delicti, as in the instant case (Moreno vs. Ago Chi, 12 Phil., 439,
442).
4

Neither is the Act an improper exercise of the police power of the state. It has been said that the
police power is the most insistent and least limitable of all powers of the government. It has been
aptly described as a power co-extensive with self-protection and constitutes the law of overruling
necessity. Any measure intended to promote the health, peace, morals, education and good order
of the people or to increase the industries of the state, develop its resources and add to its wealth
and prosperity (Barbier vs. Connolly, 113 U.S., 27), is a legitimate exercise of the police power,
unless shown to be whimsical or capricious as to unduly interfere with the rights of an
individual, the same must be upheld.
Act No. 1639, as above stated, is designed to promote peace and order in the non-Christian
tribes so as to remove all obstacles to their moral and intellectual growth and, eventually, to
hasten their equalization and unification with the rest of their Christian brothers. Its ultimate
purpose can be no other than to unify the Filipino people with a view to a greater Philippines.
The law, then, does not seek to mark the non-Christian tribes as "an inferior or less capable
race." On the contrary, all measures thus far adopted in the promotion of the public policy
towards them rest upon a recognition of their inherent right to equality in that enjoyment of
those privileges now enjoyed by their Christian brothers. But as there can be no true equality
before the law, if there is, in fact, no equality in education, the government has endeavoured, by
appropriate measures, to raise their culture and civilization and secure for them the benefits of
their progress, with the ultimate end in view of placing them with their Christian brothers on the
basis of true equality. It is indeed gratifying that the non-Christian tribes "far from retrograding,
are definitely asserting themselves in a competitive world," as appellant's attorney impressively
avers, and that they are "a virile, up-and -coming people eager to take their place in the world's
social scheme." As a matter of fact, there are now lawyers, doctors and other professionals
educated in the best institutions here and in America. Their active participation in the
multifarious welfare activities of community life or in the delicate duties of government is
certainly a source of pride and gratification to people of the Philippines. But whether conditions
have so changed as to warrant a partial or complete abrogation of the law, is a matter which
rests exclusively within the prerogative of the National Assembly to determine. In the
constitutional scheme of our government, this court can go no farther than to inquire whether
the Legislature had the power to enact the law. If the power exists, and we hold it does exist, the
wisdom of the policy adopted, and the adequacy under existing conditions of the measures
enacted to forward it, are matters which this court has no authority to pass upon. And, if in the
application of the law, the educated non-Christians shall incidentally suffer, the justification still
exists in the all-comprehending principle of salus populi suprema est lex. When the public safety
or the public morals require the discontinuance of a certain practice by certain class of persons,
the hand of the Legislature cannot be stayed from providing for its discontinuance by any
incidental inconvenience which some members of the class may suffer. The private interests of
such members must yield to the paramount interests of the nation (Cf. Boston Beer
Co. vs. Mass., 97 U.S., 25; 24 law. ed., 989).
Judgment is affirmed, with costs against appellant.
Avancea, C.J., Villa-Real, Imperial, Diaz, Laurel, and Conception, JJ., concur.





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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D.
ACHACOSO, as Administrator of the Philippine Overseas Employment
Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm
"engaged principally in the recruitment of Filipino workers, male and female, for overseas
placement,"
1
challenges the Constitutional validity of Department Order No. 1, Series of 1988, of
the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD
WORKERS," in this petition for certiorari and prohibition. Specifically, the measure is assailed
for "discrimination against males or females;"
2
that it "does not apply to all Filipino workers but
only to domestic helpers and females with similar skills;"
3
and that it is violative of the right to
travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being
legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution,
providing for worker participation "in policy and decision-making processes affecting their rights
and benefits as may be provided by law."
4
Department Order No. 1, it is contended, was passed
in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-
impairment clause, in addition to the "great and irreparable injury" that PASEI members face
should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and
Administrator of the Philippine Overseas Employment Administration, filed a Comment informing
the Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in
the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and
Switzerland. * In submitting the validity of the challenged "guidelines," the Solicitor General
invokes the police power of the Philippine State.
It is admitted that Department Order No. 1 is in the nature of a police power measure. The only
question is whether or not it is valid under the Constitution.
The concept of police power is well-established in this jurisdiction. It has been defined as the
"state authority to enact legislation that may interfere with personal liberty or property in order
to promote the general welfare."
5
As defined, it consists of (1) an imposition of restraint upon
liberty or property, (2) in order to foster the common good. It is not capable of an exact definition
but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace.
6

"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where
it could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits."
6

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the
Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of
statehood and sovereignty. It is a fundamental attribute of government that has enabled it to
perform the most vital functions of governance. Marshall, to whom the expression has been
credited,
7
refers to it succinctly as the plenary power of the State "to govern its citizens."
8

"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly
termed the "law of overwhelming necessity." It may be said to be that inherent and plenary power
in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of
society."
9

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in
the conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an individual citizen or a group
of citizens to obstruct unreasonably the enactment of such salutary measures calculated to
ensure communal peace, safety, good order, and welfare."
10
Significantly, the Bill of Rights itself
does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself,
the greatest of all rights, is not unrestricted license to act according to one's will."
11
It is subject
to the far more overriding demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all its
awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in
that event, it defeats the purpose for which it is exercised, that is, to advance the public good.
Thus, when the power is used to further private interests at the expense of the citizenry, there is
a clear misuse of the power.
12

In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity.
13
In the absence of clear and
convincing evidence to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure should be nullified.
There is no question that Department Order No. 1 applies only to "female contract
workers,"
14
but it does not thereby make an undue discrimination between the sexes. It is well-
settled that "equality before the law" under the Constitution
15
does not import a perfect Identity
of rights among all men and women. It admits of classifications, provided that (1) such
classifications rest on substantial distinctions; (2) they are germane to the purposes of the law;
(3) they are not confined to existing conditions; and (4) they apply equally to all members of the
same class.
16

The Court is satisfied that the classification made-the preference for female workers rests on
substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our
female labor force abroad, especially domestic servants, amid exploitative working conditions
marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment
suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by
testimonies of returning workers, are compelling motives for urgent Government action. As
precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of
exploitation. In fulfilling that duty, the Court sustains the Government's efforts.
7

The same, however, cannot be said of our male workers. In the first place, there is no evidence
that, except perhaps for isolated instances, our men abroad have been afflicted with an Identical
predicament. The petitioner has proffered no argument that the Government should act similarly
with respect to male workers. The Court, of course, is not impressing some male chauvinistic
notion that men are superior to women. What the Court is saying is that it was largely a matter
of evidence (that women domestic workers are being ill-treated abroad in massive instances) and
not upon some fanciful or arbitrary yardstick that the Government acted in this case. It is
evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The
Court cannot, however, say the same thing as far as men are concerned. There is simply no
evidence to justify such an inference. Suffice it to state, then, that insofar as classifications are
concerned, this Court is content that distinctions are borne by the evidence. Discrimination in
this case is justified.
As we have furthermore indicated, executive determinations are generally final on the Court.
Under a republican regime, it is the executive branch that enforces policy. For their part, the
courts decide, in the proper cases, whether that policy, or the manner by which it is
implemented, agrees with the Constitution or the laws, but it is not for them to question its
wisdom. As a co-equal body, the judiciary has great respect for determinations of the Chief
Executive or his subalterns, especially when the legislature itself has specifically given them
enough room on how the law should be effectively enforced. In the case at bar, there is no
gainsaying the fact, and the Court will deal with this at greater length shortly, that Department
Order No. 1 implements the rule-making powers granted by the Labor Code. But what should be
noted is the fact that in spite of such a fiction of finality, the Court is on its own persuaded that
prevailing conditions indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to the purpose behind the
measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the
protection for Filipino female overseas workers"
17
this Court has no quarrel that in the midst of
the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for
their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply
indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending review
of the administrative and legal measures, in the Philippines and in the host countries . . ."
18
),
meaning to say that should the authorities arrive at a means impressed with a greater degree of
permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary
malleability, depending on the circumstances of each case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. The Secretary of Labor and Employment (DOLE)
may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the welfare
and protection of Filipino workers.
19

The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas
workers. That it does not apply to "all Filipina workers"
20
is not an argument for
unconstitutionality. Had the ban been given universal applicability, then it would have been
unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced.
What the Constitution prohibits is the singling out of a select person or group of persons within
an existing class, to the prejudice of such a person or group or resulting in an unfair advantage
to another person or group of persons. To apply the ban, say exclusively to workers deployed by
A, but not to those recruited by B, would obviously clash with the equal protection clause of the
8

Charter. It would be a classic case of what Chase refers to as a law that "takes property from A
and gives it to B."
21
It would be an unlawful invasion of property rights and freedom of contract
and needless to state, an invalid act.
22
(Fernando says: "Where the classification is based on
such distinctions that make a real difference as infancy, sex, and stage of civilization of minority
groups, the better rule, it would seem, is to recognize its validity only if the young, the women,
and the cultural minorities are singled out for favorable treatment. There would be an element of
unreasonableness if on the contrary their status that calls for the law ministering to their needs
is made the basis of discriminatory legislation against them. If such be the case, it would be
difficult to refute the assertion of denial of equal protection."
23
In the case at bar, the assailed
Order clearly accords protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment.
From scattered provisions of the Order, it is evident that such a total ban has hot been
contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers
of similar skills defined herein to the following [sic] are authorized under these
guidelines and are exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of State
and Government;
5.2 Hirings by Minister, Deputy Minister and the other senior
government officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly
accredited international organizations.
5.4 Hirings by employers in countries with whom the Philippines
have [sic] bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--
Vacationing domestic helpers and/or workers of similar skills shall be allowed to
process with the POEA and leave for worksite only if they are returning to the
same employer to finish an existing or partially served employment contract.
Those workers returning to worksite to serve a new employer shall be covered by
the suspension and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE)
may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines,
and/or,
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers.
24


9

xxx xxx xxx
The consequence the deployment ban has on the right to travel does not impair the right. The
right to travel is subject, among other things, to the requirements of "public safety," "as may be
provided by law."
25
Department Order No. 1 is a valid implementation of the Labor Code, in
particular, its basic policy to "afford protection to labor,"
26
pursuant to the respondent
Department of Labor's rule-making authority vested in it by the Labor Code.
27
The petitioner
assumes that it is unreasonable simply because of its impact on the right to travel, but as we
have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto.
Neither is there merit in the contention that Department Order No. 1 constitutes an invalid
exercise of legislative power. It is true that police power is the domain of the legislature, but it
does not mean that such an authority may not be lawfully delegated. As we have mentioned, the
Labor Code itself vests the Department of Labor and Employment with rulemaking powers in the
enforcement whereof.
28

The petitioners reliance on the Constitutional guaranty of worker participation "in policy and
decision-making processes affecting their rights and benefits"
29
is not well-taken. The right
granted by this provision, again, must submit to the demands and necessities of the State's
power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment
opportunities for all.
30

"Protection to labor" does not signify the promotion of employment alone. What concerns the
Constitution more paramountly is that such an employment be above all, decent, just, and
humane. It is bad enough that the country has to send its sons and daughters to strange lands
because it cannot satisfy their employment needs at home. Under these circumstances, the
Government is duty-bound to insure that our toiling expatriates have adequate protection,
personally and economically, while away from home. In this case, the Government has evidence,
an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection,
and as part of its duty, it has precisely ordered an indefinite ban on deployment.
The Court finds furthermore that the Government has not indiscriminately made use of its
authority. It is not contested that it has in fact removed the prohibition with respect to certain
countries as manifested by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the
loftier purposes targetted by the Government.
31
Freedom of contract and enterprise, like all
other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has
never been fully accepted as a controlling economic way of life.
This Court understands the grave implications the questioned Order has on the business of
recruitment. The concern of the Government, however, is not necessarily to maintain profits of
business firms. In the ordinary sequence of events, it is profits that suffer as a result of
Government regulation. The interest of the State is to provide a decent living to its citizens. The
Government has convinced the Court in this case that this is its intent. We do not find the
impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief
prayed for.

10

WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Cortes and Grio-Aquino, JJ., concur.
Gutierrez, Jr. and Medialdea, JJ., are on leave.

Footnotes
1 Rollo, 3.
2 Id., 12.
3 Id., 13.
4 CONST., Art XIII, Sec. 3.
* Per reports, on June 14, 1988, the Government is said to have lifted the ban on
five more countries: New Zealand Australia, Sweden, Spain, and West Germany.
("Maid export ban lifted in 5 states," The Manila Chronicle, June 14, 1988, p. 17,
col. 2.)
5 Edu v. Ericta, No. L-32096, October 24, 1970, 35 SCRA 481, 487.
6 Supra, 488.
7 TRIBE, AMERICAN CONSTITUTIONAL LAW, 323 (1978).
8 Id.
9 Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708 (1919).
10 Edu v. Ericta, supra.
11 Rubi v. Provincial Board of Mindoro, supra, 704.
12 It is generally presumed, notwithstanding the plenary character of the
lawmaking power, that the legislature must act for public purposes. In Pascual v.
Secretary of Public Works [110 Phil. 331 (1960)], the Court nullified an act of
Congress appropriating funds for a private purpose. The prohibition was not
embodied in the Constitution then in force, however, it was presumed that
Congress could not do it.
13 Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila, No. L-24693, July 31, 1967, 20 SCRA 849.
14 Dept. Order No. 1 (DOLE), February 10, 1988.
15 CONST., supra, Art. III, Sec. 1.
11

16 People v. Cayat, 68 Phil. 12 (1939).
17 Dept. Order No. 1, supra.
18 Supra.
19 Supra.
20 Rollo, Id., 13.
21 See TRIBE, Id., citing Calder v. Bull, 3 U.S. 386 (1798).
22 Id.
23 FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 549-550 (1977).
24 Dept. Order No. 1, supra.
25 CONST., supra, Art. Ill, Sec. 6.
26 Pres. Decree No. 442, Art. 3.
27 Supra, Art. 5.
28 Supra.
29 CONST., supra, Art. XIII, Sec. 3.
30 Supra.
31 Heirs of Juancho Ardona v. Reyes, Nos. L-60549, 60553-60555, October 26,
1983, 125 SCRA 220.









12

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by
petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin
respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas
Pambansa Big. 51, 52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who
has filed his certificate of candidacy for said position of Governor in the forthcoming elections of
January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the
Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San
Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg.
52 as discriminatory and contrary to the equal protection and due process guarantees of the
Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C
of the Constitution and disqualification mentioned in existing laws, which are
hereby declared as disqualification for any of the elective officials enumerated in
section 1 hereof.
Any retired elective provincial city or municipal official who has received payment of
the retirement benefits to which he is entitled under the law, and who shall have
been 6,5 years of age at the commencement of the term of office to which he seeks
to be elected shall not be qualified to run for the same elective local office from which
he has retired (Emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and
that the classification provided therein is based on "purely arbitrary grounds and, therefore,
class legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory
provisions:
13

Sec 7. Terms of Office Unless sooner removed for cause, all local elective
officials hereinabove mentioned shall hold office for a term of six (6) years, which
shall commence on the first Monday of March 1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of disloyalty to the State, including acts
amounting to subversion, insurrection, rebellion or other similar crimes, shall not
be qualified to be a candidate for any of the offices covered by this Act, or to
participate in any partisan political activity therein:
provided that a judgment of conviction for any of the aforementioned crimes shall be
conclusive evidence of such fact and
the filing of charges for the commission of such crimes before a civil court or military
tribunal after preliminary investigation shall be prima fascie evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).
Section 1. Election of certain Local Officials ... The election shall be held on
January 30, 1980. (Batas Pambansa, Blg. 52)
Section 6. Election and Campaign Period The election period shall be fixed by
the Commission on Elections in accordance with Section 6, Art. XII-C of the
Constitution. The period of campaign shall commence on December 29, 1979 and
terminate on January 28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution,
which provides that a "bona fide candidate for any public office shall be it. from any form of
harassment and discrimination. "The question of accreditation will not be taken up in this case
but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been
squarely raised,
Petitioners then pray that the statutory provisions they have challenged be declared null and
void for being violative of the Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic procedural infirmities,
hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties
and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan
Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint,
nor do the latter join Dumlao in his. The respectively contest completely different statutory
provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The
action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although
petitioners plead nine constraints as the reason of their joint Petition, it would have required
only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and
Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure.
14

For another, there are standards that have to be followed inthe exercise of the function of judicial
review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial
by the party raising the constitutional question: (3) the plea that the function be exercised at the
earliest opportunity and (4) the necessity that the constiutional question be passed upon in order
to decide the case (People vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the parties
have raised the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by
the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision.
Yet, Dumlao has not been adversely affected by the application of that provision. No petition
seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that
constitutional body on the matter, which this Court is being asked to review on Certiorari. His is
a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory
opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner
Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief
Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as
provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have the following power and functions:
1) xxx
2) Be the sole judge of all contests relating to the elections, returns
and qualifications of all members of the National Assembly and elective provincial
and city officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:
Section 11. Any decision, order, or ruling of the Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty days from his
receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their
Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that
neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified
from being candidates for local elective positions. Neither one of them has been calle ed to have
been adversely affected by the operation of the statutory provisions they assail as
unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest
15

at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial
redress.
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and
that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The
Secretary of Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a statute may be contested only by one who
will sustain a direct injury in consequence of its enforcement. Yet, there are many
decisions nullifying at the instance of taxpayers, laws providing for the
disbursement of public funds, upon the theory that "the expenditure of public
funds, by an officer of the State for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds," which may be
enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential to give the requisite
standing to attack the constitutionality of a statute, the general rule is that not
only persons individually affected, but also taxpayers have sufficient interest in
preventing the illegal expenditure of moneys raised by taxation and they may,
therefore, question the constitutionality of statutes requiring expenditure of public
moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15
SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and
sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While,
concededly, the elections to be held involve the expenditure of public moneys, nowhere in their
Petition do said petitioners allege that their tax money is "being extracted and spent in violation
of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392
U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see
Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent from
wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution
Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se
is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677
[1972]), speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of
an act of the legislature will not be determined by the courts unless that question is properly
raised and presented in appropriate cases and is necessary to a determination of the case; i.e.,
the issue of constitutionality must be the very lis mota presented."
We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the necessity for resolving the issue of
constitutionality is absent, and procedural regularity would require that this suit be dismissed.


16

II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not
being entirely without discretion in the matter. Thus, adherence to the strict procedural standard
was relaxed in Tinio vs. Mina(26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
having been penned by our present Chief Justice. The reasons which have impelled us are the
paramount public interest involved and the proximity of the elections which will be held only a
few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him
personally is belied by the fact that several petitions for the disqualification of other candidates
for local positions based on the challenged provision have already been filed with the COMELEC
(as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of
intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is
neither well taken. The constitutional guarantee of equal protection of the laws is subject to
rational classification. If the groupings are based on reasonable and real differentiations, one
class can be treated and regulated differently from another class. For purposes of public service,
employees 65 years of age, have been validly classified differently from younger employees.
Employees attaining that age are subject to compulsory retirement, while those of younger ages
are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates should
not be more than 65 years of age at the time they assume office, if applicable to everyone, might
or might not be a reasonable classification although, as the Solicitor General has intimated, a
good policy of the law would be to promote the emergence of younger blood in our political
elective echelons. On the other hand, it might be that persons more than 65 years old may also
be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not be a
reasonable disqualification for elective local officials. For one thing, there can also be retirees
from government service at ages, say below 65. It may neither be reasonable to disqualify
retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who
is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him from running for the same office from which he
had retired, as provided for in the challenged provision. The need for new blood assumes
relevance. The tiredness of the retiree for government work is present, and what is emphatically
significant is that the retired employee has already declared himself tired and unavailable for the
same government work, but, which, by virtue of a change of mind, he would like to assume
again. It is for this very reason that inequality will neither result from the application of the
challenged provision. Just as that provision does not deny equal protection neither does it permit
of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly
treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal classification.
What is proscribes is a classification which is arbitrary and unreasonable. That constitutional
guarantee is not violated by a reasonable classification based upon substantial distinctions,
where the classification is germane to the purpose of the law and applies to all Chose belonging
to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606
[1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967];
Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the
17

emergence of younger blood in local governments. The classification in question being pursuant
to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the
objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The
Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity of the
questioned provision. Well accepted is the rule that to justify the nullification of a law, there
must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal
breach. Courts are practically unanimous in the pronouncement that laws shall not be declared
invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs.
COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on
Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to
prescribe qualifications for one who desires to become a candidate for office provided they are
reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4
of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in
two parts. The first provides:
a. judgment of conviction jor any of the aforementioned crimes shall be conclusive
evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal principle. We are aware of the
presumption of validity that attaches to a challenged statute, of the well-settled principle that "all
reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set
aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We
are constrained to hold that this is one such clear case.
Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the
fundamental law, is not synonymous with guilt. The challenged proviso contravenes the
constitutional presumption of innocence, as a candidate is disqualified from running for public
office on the ground alone that charges have been filed against him before a civil or military
tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of
proof, no distinction is made between a person convicted of acts of dislotalty and one against
whom charges have been filed for such acts, as both of them would be ineligible to run for public
office. A person disqualified to run for public office on the ground that charges have been filed
against him is virtually placed in the same category as a person already convicted of a crime with
the penalty of arresto, which carries with it the accessory penalty of suspension of the right to
hold office during the term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and therefore, may
be rebutted, yet. there is "clear and present danger" that because of the proximity of the
elections, time constraints will prevent one charged with acts of disloyalty from offering contrary
proof to overcome the prima facie evidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts
rather than before an administrative body such as the COMELEC. A highly possible conflict of
findings between two government bodies, to the extreme detriment of a person charged, will
thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not
be allowed to be substituted for a judicial determination.
18

Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second paragraph
of section 4 of Batas Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby
declared valid. Said paragraph reads:
SEC. 4. Special disqualification. In addition to violation of Section 10 of Article
XII(C) of the Constitution and disqualifications mentioned in existing laws which
are hereby declared as disqualification for any of the elective officials enumerated
in Section 1 hereof, any retired elective provincial, city or municipal official, who
has received payment of the retirement benefits to which he is entitled under the
law and who shall have been 65 years of age at the commencement of the term of
office to which he seeks to be elected, shall not be qualified to run for the same
elective local office from which he has retired.
2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52
providing that "... the filing of charges for the commission of such crimes before a
civil court or military tribunal after preliminary investigation shall be prima
facie evidence of such fact", is hereby declared null and void, for being violative of
the constitutional presumption of innocence guaranteed to an accused.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.
Fernando, C.J., concurs and submits a brief separate opinion.
De Castro, J., abstain as far as petitioner Dumlao is concerned.

Separate Opinions

BARREDO, J., concurring:
But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI
I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.
19

FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission
1
and People v. Vera,
2
did not constitute an
obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked.
3
While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this
Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the
philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be
too strongly stressed that a petition of this character must ever remain an orderly proceeding
that cannot be oblivious of the requisites to be complied with to justify a pronouncement on
constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of
litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor
General should be heard in protest against such neglect of rudimentary precepts. Necessarily
then, whenever objections based on refusal to abide by the procedural principles are presented,
this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of
the controlling doctrines. There are times, however, when the controversy is of such a character
that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this
Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of
the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political comeback [sic] as governor of
Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age.
4
Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is
decisive. That would be the test for its validity or lack of it. There is this relevant excerpt
from McCray v. United States:
5
"The decisions of this Court [Supreme Court of the United States]
from the beginning lend no support whatever to the assumption that the judiciary may restrain
the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted.
6
The late Chief Justice Warren, who penned the opinion in United States v.
20

O' Brien
7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
is unwise legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about it."
8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration:
9
"It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest.
10
It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction
to the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy
of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ."
11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson,
12
is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice."
13
As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so
21

many complaints filed on his desk would give in to the all-too-human propensity to take the easy
way out and to file charges, then a candidate Would be hard put to destroy the presumption. A
sense of realism for me compels a declaration of nullity of a provision which on its face is
patently offensive to the Constitution.
Hence my concurrence.
TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of governor
of his home province of Nueva Vizcaya and would in effect bar the electors of his province from
electing him to said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of age at the commencement of the term
of office to which he seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective local official from running
for the sameelective office (of governor, in this case) previously held by him and from which he
has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly
treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor
(because the disqualification is for the retiree of 65 to run for the same elective office from which
he retired) but petitioner is barred from doing so (although he may run for any other lesser
office). Both are 65 and are retirees, yet one is barred from running for the office of governor.
What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has
cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya
1
(since no other case by
a former governor similarly barred by virtue of said provision can never be cited
2
). Is there not
here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and
security shall be given under the law to every person, under analogous if not Identical
circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor reasonable.
It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old
blood" retirees may continue in local governments since they are not disqualified at all to run for
any other local elective office such as from provincial governor, vice-governor, city, municipal or
district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
22

judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or "new
blood" cannot hinge on such an irrelevant question of whether or not they have received their
retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated."
3
Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had
Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a qualification
to insure a modicum of maturity 'now reduced to 21 years in the present batas),
but no maximum age has ever been imposed as a disqualification for elect public
office since the right and win of the people to elect the candidate of their choice for
any elective office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are
analogous. If law be looked upon in terms of burden or charges, those that full within a class
should be treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest."
4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to
the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for
election and places in the hands of the military and civil prosecutors a dangerous and
23

devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code.
5
Otherwise, the questioned provision would deny the bona fide candidate substantive due
process and would be grossly violative of his constitutional right of presumption of innocence
and of the above-quoted provision of the 1973 Constitution protecting candidates for public office
from any form of harassment and discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a majority
in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.

Separate Opinions
BARREDO, J., concurring:
But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI
I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.
FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission
1
and People v. Vera,
2
did not constitute an
obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
24

statute or presidential decree is invoked.
3
While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this
Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the
philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be
too strongly stressed that a petition of this character must ever remain an orderly proceeding
that cannot be oblivious of the requisites to be complied with to justify a pronouncement on
constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of
litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor
General should be heard in protest against such neglect of rudimentary precepts. Necessarily
then, whenever objections based on refusal to abide by the procedural principles are presented,
this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of
the controlling doctrines. There are times, however, when the controversy is of such a character
that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this
Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of
the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age.
4
Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is
decisive. That would be the test for its validity or lack of it. There is this relevant excerpt
from McCray v. United States:
5
"The decisions of this Court [Supreme Court of the United States]
from the beginning lend no support whatever to the assumption that the judiciary may restrain
the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted.
6
The late Chief Justice Warren, who penned the opinion in United States v.
O' Brien
7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
25

is unwise legislation which Congress had the undoubted power to enact and which could be re-
enacted in its exact form if the same or another legislator made a 'wiser' speech about it."
8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration:
9
"It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest.
10
It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction
to the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy
of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ."
11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson,
12
is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice."
13
As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so
many complaints filed on his desk would give in to the all-too-human propensity to take the easy
way out and to file charges, then a candidate Would be hard put to destroy the presumption. A
sense of realism for me compels a declaration of nullity of a provision which on its face is
patently offensive to the Constitution.
Hence my concurrence.

26

TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of governor
of his home province of Nueva Vizcaya and would in effect bar the electors of his province from
electing him to said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of age at the commencement of the term
of office to which he seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective local official from running
for the sameelective office (of governor, in this case) previously held by him and from which he
has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly
treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor
(because the disqualification is for the retiree of 65 to run for the same elective office from which
he retired) but petitioner is barred from doing so (although he may run for any other lesser
office). Both are 65 and are retirees, yet one is barred from running for the office of governor.
What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has
cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya
1
(since no other case by
a former governor similarly barred by virtue of said provision can never be cited
2
). Is there not
here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and
security shall be given under the law to every person, under analogous if not Identical
circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor reasonable.
It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old
blood" retirees may continue in local governments since they are not disqualified at all to run for
any other local elective office such as from provincial governor, vice-governor, city, municipal or
district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or "new
blood" cannot hinge on such an irrelevant question of whether or not they have received their
retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
27

petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated."
3
Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had
Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a qualification
to insure a modicum of maturity 'now reduced to 21 years in the present batas),
but no maximum age has ever been imposed as a disqualification for elect public
office since the right and win of the people to elect the candidate of their choice for
any elective office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are
analogous. If law be looked upon in terms of burden or charges, those that full within a class
should be treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest."
4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to
the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for
election and places in the hands of the military and civil prosecutors a dangerous and
devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code.
5
Otherwise, the questioned provision would deny the bona fide candidate substantive due
28

process and would be grossly violative of his constitutional right of presumption of innocence
and of the above-quoted provision of the 1973 Constitution protecting candidates for public office
from any form of harassment and discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a majority
in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.

Separate Opinions
BARREDO, J., concurring:
But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI
I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.
FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission
1
and People v. Vera,
2
did not constitute an
obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked.
3
While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavour to vindicate rights safeguarded by the fundamental law. In that sense, this
Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the
philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be
too strongly stressed that a petition of this character must ever remain an orderly proceeding
29

that cannot be oblivious of the requisites to be complied with to justify a pronouncement on
constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of
litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor
General should be heard in protest against such neglect of rudimentary precepts. Necessarily
then, whenever objections based on refusal to abide by the procedural principles are presented,
this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of
the controlling doctrines. There are times, however, when the controversy is of such a character
that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this
Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of
the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age.
4
Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is
decisive. That would be the test for its validity or lack of it. There is this relevant excerpt
from McCray v. United States:
5
"The decisions of this Court [Supreme Court of the United States]
from the beginning lend no support whatever to the assumption that the judiciary may restrain
the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted.
6
The late Chief Justice Warren, who penned the opinion in United States v.
O' Brien
7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
is unwise legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about it."
8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
30

Tuason and Co., Inc. v. Land Tenure Administration:
9
"It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest.
10
It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction
to the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy
of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ."
11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson,
12
is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice."
13
As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so
many complaints filed on his desk would give in to the all-too-human propensity to take the easy
way out and to file charges, then a candidate Would be hard put to destroy the presumption. A
sense of realism for me compels a declaration of nullity of a provision which on its face is
patently offensive to the Constitution.
Hence my concurrence.
TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the
discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which
would impose a special disqualification on petitioner Patricio Dumlao from
running for the elective local office of governor of his home province of Nueva
31

Vizcaya and would in effect bar the electors of his province from electing him to
said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits to
which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected.
To specially and peculiarly ban a 65-year old previously retired elective local official from running
for the sameelective office (of governor, in this case) previously held by him and from which he
has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly
treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor
(because the disqualification is for the retiree of 65 to run for the same elective office from which
he retired) but petitioner is barred from doing so (although he may run for any other lesser
office). Both are 65 and are retirees, yet one is barred from running for the office of governor.
What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has
cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya
1
(since no other case by
a former governor similarly barred by virtue of said provision can never be cited
2
). Is there not
here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and
security shall be given under the law to every person, under analogous if not Identical
circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor reasonable.
It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old
blood" retirees may continue in local governments since they are not disqualified at all to run for
any other local elective office such as from provincial governor, vice-governor, city, municipal or
district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or "new
blood" cannot hinge on such an irrelevant question of whether or not they have received their
retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated."
3
Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had
32

Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a qualification
to insure a modicum of maturity 'now reduced to 21 years in the present batas),
but no maximum age has ever been imposed as a disqualification for elect public
office since the right and win of the people to elect the candidate of their choice for
any elective office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are
analogous. If law be looked upon in terms of burden or charges, those that full within a class
should be treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest."
4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to
the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for
election and places in the hands of the military and civil prosecutors a dangerous and
devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code.
5
Otherwise, the questioned provision would deny the bona fide candidate substantive due
process and would be grossly violative of his constitutional right of presumption of innocence
and of the above-quoted provision of the 1973 Constitution protecting candidates for public office
from any form of harassment and discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a majority
in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
33

is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.
Footnotes
Fernando, CJ.:
1 63 Phil. 139 (1936).
2 65 Phil. 56 (1937).
3 Cf. Sanidad, Commision on Election L-44640, October 12, 1976, 73 SCRA 333;
De la T Llana v. Election. L-47245, December 9, 1917, 80 SCRA 525; Hidalgo v.
Marcos L-17329, December 9, 1977, 80 SCRA 538; Peralta v. Commission on
Elections, L-47771, March 11, 1978, 82 SCRA 30),
4 Petition, 3-4.
5 195 US 27 (1904).
6 Ibid, 56.
7 391 US 367 (1968).
8 lbid, 383-384.
9 L-21064, February 18, 1970, 31 SCRA 413.
10 lbid, 435.
11 Ibid, 439.
12 L-26865-66, January 30, 1970, 31 SCRA 313.
13 Ibid, 318.
Teehankee, K.:
1 Petition at page 4.
2 Respondents cites in its comment (at page 15) a handful of pending cases for
disqualification of mayoral candidates.
3 Respondent's Comment, at pages 12-13.
4 E. M. Fernando: The Bill of Rights, 2nd Ed., p. 100, cit. J.M. Tuason & Co., Inc.
vs. Land Tenure Administration, 31 SCRA 413 (1970).
5 SEC. 22. Ineligibility of person found disloyal to the Government. Any person
found guilty in afinal judgment or order of a competent court or tribunal of any
crime involving disloyalty to the duly constituted Government such as rebellion,
sedition, violations of the anti-subversion and firearms laws, and crimes against
34

the national security shall not, unless restored to his full civil and political rights
in accordance with law, be eligible and his certificate of candidacy shall not be
given due course not shall the votes cast in his favor be counted. In the event
his final conviction comes after his election, he shall automatically cease in office.
(P.D. 1296, decreed February 7, 1978).

























35

Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC

G.R. No. 132922 April 21, 1998
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and
GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:
In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998,
1
we upheld the validity of
11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for political
ads, except to the Commission on Elections under 90, of B.P. No. 881, the Omnibus Election
Code, with respect to print media, and 92, with respect to broadcast media. In the present case,
we consider the validity of 92 of B.P. Blg. No. 881 against claims that the requirement that radio
and television time be given free takes property without due process of law; that it violates the
eminent domain clause of the Constitution which provides for the payment of just compensation;
that it denies broadcast media the equal protection of the laws; and that, in any event, it violates
the terms of the franchise of petitioner GMA Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an
organization of lawyers of radio and television broadcasting companies. They are suing as
citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc., operates
radio and television broadcasting stations throughout the Philippines under a franchise granted
by Congress.
Petitioners challenge the validity of 92 on the ground (1) that it takes property without due
process of law and without just compensation; (2) that it denies radio and television broadcast
companies the equal protection of the laws; and (3) that it is in excess of the power given to the
COMELEC to supervise or regulate the operation of media of communication or information
during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an
interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers,
and registered voters.
In those cases
2
in which citizens were authorized to sue, this Court upheld their standing in
view of the "transcendental importance" of the constitutional question raised which justified the
granting of relief. In contrast, in the case at bar, as will presently be shown, petitioner's
substantive claim is without merit. To the extent, therefore, that a party's standing is determined
by the substantive merit of his case or preliminary estimate thereof, petitioner TELEBAP must be
held to be without standing. Indeed, a citizen will be allowed to raise a constitutional question
36

only when he can show that he has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government; the injury fairly is fairly traceable to the
challenged action; and the injury is likely to be redressed by a favorable action.
3
Members of
petitioner have not shown that they have suffered harm as a result of the operation of 92 of B.P.
Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this case does
not concern their right of suffrage. Their interest in 92 of B.P. Blg. 881 should be precisely in
upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the exercise by
Congress of its taxing or spending power.
4
A party suing as a taxpayer must specifically show
that he has a sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he will sustain a direct injury as a result of the enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown
that the party suing has some substantial relation to the third party, or that the third party
cannot assert his constitutional right, or that the eight of the third party will be diluted unless
the party in court is allowed to espouse the third party's constitutional claim. None of these
circumstances is here present. The mere fact that TELEBAP is composed of lawyers in the
broadcast industry does not entitle them to bring this suit in their name as representatives of the
affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge. Petitioner operates
radio and television broadcast stations in the Philippines affected by the enforcement of 92 of
B.P. Blg. 881 requiring radio and television broadcast companies to provide free air time to the
COMELEC for the use of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC
Time in connection with the 1992 presidential election and the 1995 senatorial election and that
it stands to suffer even more should it be required to do so again this year. Petitioner's allegation
that it will suffer losses again because it is required to provide free air time is sufficient to give it
standing to question the validity of 92.
5

Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90 and 92
of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the
opportunity of candidates in an election in regard to the use of mass media for political
campaigns. These statutory provisions state in relevant parts:
R.A. No. 6646
Sec. 11. Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful:
37

xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or other mass media, or
any person making use of the mass media to sell or to give free of charge print space or
air time for campaign or other political purposes except to the Commission as provided
under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any elective public office
shall take a leave of absence from his work as such during the campaign period.
B.P. Blg. 881, (Omnibus Election Code)
Sec. 90. Comelec space. The Commission shall procure space in at least one newspaper
of general circulation in every province or city; Provided, however, That in the absence of
said newspaper, publication shall be done in any other magazine or periodical in said
province or city, which shall be known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be allocated, free of charge, equally and
impartially by the Commission among all candidates within the area in which the
newspaper is circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. The commission shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of the
campaign. (Sec. 46, 1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time for allocation
to the candidates. It will be noted that while 90 of B.P. Blg. 881 requires the COMELEC to
procure print space which, as we have held, should be paid for, 92 states that air time shall be
procured by the COMELEC free of charge.
Petitioners contend that 92 of BP Blg. 881 violates the due process clause
6
and the eminent
domain provision
7
of the Constitution by taking air time from radio and television broadcasting
stations without payment of just compensation. Petitioners claim that the primary source of
revenue of the radio and television stations is the sale of air time to advertisers and that to
require these stations to provide free air time is to authorize a taking which is not "ade
minimis temporary limitation or restraint upon the use of private property." According to
petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free air time of one
(1) hour every morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursday
from 7:00 to 8:00 p.m. (prime time) and, in this year's elections, it stands to lose P58,980,850.00
in view of COMELEC'S requirement that radio and television stations provide at least 30 minutes
of prime time daily for the COMELEC Time.
8

Petitioners' argument is without merit, All broadcasting, whether by radio or by television
stations, is licensed by the government. Airwave frequencies have to be allocated as there are
more individuals who want to broadcast than there are frequencies to assign.
9
A franchise is
thus a privilege subject, among other things, to amended by Congress in accordance with the
constitutional provision that "any such franchise or right granted . . . shall be subject to
amendment, alteration or repeal by the Congress when the common good so requires."
10

The idea that broadcast stations may be required to provide COMELEC Time free of charge is not
new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:
38

Sec. 49. Regulation of election propaganda through mass media. (a) The franchise of all
radio broadcasting and television stations are hereby amended so as to require each such
station to furnish free of charge, upon request of the Commission [on Elections], during
the period of sixty days before the election not more than fifteen minutes of prime time
once a week which shall be known as "Comelec Time" and which shall be used exclusively
by the Commission to disseminate vital election information. Said "Comelec Time" shall
be considered as part of the public service time said stations are required to furnish the
Government for the dissemination of public information and education under their
respective franchises or permits.
The provision was carried over with slight modification by the 1978 Election Code (P.D. No.
1296), which provided:
Sec. 46. COMELEC Time. The Commission [on Elections] shall procure radio and
television time to be known as "COMELEC Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio broadcasting and television stations
are hereby amended so as to require such stations to furnish the Commission radio or
television time, free of charge, during the period of the campaign, at least once but not
oftener than every other day.
Substantially the same provision is now embodied in 92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio
and television broadcast stations and, until the present case was brought, such provisions had
not been thought of as taking property without just compensation. Art. XII, 11 of the
Constitution authorizes the amendment of franchises for "the common good." What better
measure can be conceived for the common good than one for free air time for the benefit not only
of candidates but even more of the public, particularly the voters, so that they will be fully
informed of the issues in an election? "[I]t is the right of the viewers and listeners, not the right of
the broadcasters, which is paramount."
11

Nor indeed can there be any constitutional objection to the requirement that broadcast stations
give free air time. Even in the United States, there are responsible scholars who believe that
government controls on broadcast media can constitutionally be instituted to ensure diversity of
views and attention to public affairs to further the system of free expression. For this purpose,
broadcast stations may be required to give free air time to candidates in an election.
12
Thus,
Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in
regulations affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most important,
government should ensure free media time for candidates. Almost all European nations
make such provisions; the United States does not. Perhaps government should pay for
such time on its own. Perhaps broadcasters should have to offer it as a condition for
receiving a license. Perhaps a commitment to provide free time would count in favor of the
grant of a license in the first instance. Steps of this sort would simultaneously promote
attention to public affairs and greater diversity of view. They would also help overcome
the distorting effects of "soundbites" and the corrosive financial pressures faced by
candidates in seeking time on the media. 13
In truth, radio and television broadcasting companies, which are given franchises, do not own
the airwaves and frequencies through which they transmit broadcast signals and images. They
are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of
some form of public service. Thus, in De Villata v. Stanley,
14
a regulation requiring interisland
39

vessels licensed to engage in the interisland trade to carry mail and, for this purpose, to give
advance notice to postal authorities of date and hour of sailings of vessels and of changes of
sailing hours to enable them to tender mail for transportation at the last practicable hour prior
to the vessel's departure, was held to be a reasonable condition for the state grant of license.
Although the question of compensation for the carriage of mail was not in issue, the Court
strongly implied that such service could be without compensation, as in fact under Spanish
sovereignty the mail was carried free.
15

In Philippine Long Distance Telephone Company v. NTC,
16
the Court ordered the PLDT to allow
the interconnection of its domestic telephone system with the international gateway facility of
Eastern Telecom. The Court cited (1) the provisions of the legislative franchise allowing such
interconnection; (2) the absence of any physical, technical, or economic basis for restricting the
linking up of two separate telephone systems; and (3) the possibility of increase in the volume of
international traffic and more efficient service, at more moderate cost, as a result of
interconnection.
Similarly, in the earlier case of PLDT v. NTC,
17
it was held:
Such regulation of the use and ownership of telecommunications systems is in the
exercise of the plenary police power of the State for the promotion of the general welfare.
The 1987 Constitution recognizes the existence of that power when it provides:
Sec. 6. The use of property bears a social function, and all economic agents
shall contribute to the common good. Individuals and private groups,
including corporations, cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands (Article XII).
The interconnection which has been required of PLDT is a form of "intervention" with
property rights dictated by "the objective of government to promote the rapid expansion of
telecommunications services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the vital role of
communications in nation building . . . and to ensure that all users of the public
telecommunications service have access to all other users of the service wherever they
may be within the Philippines at an acceptable standard of service and at reasonable
cost" (DOTC Circular No. 90-248). Undoubtedly, the encompassing objective is the
common good. The NTC, as the regulatory agency of the State, merely exercised its
delegated authority to regulate the use of telecommunications networks when it decreed
interconnection.
In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the state spends considerable public funds in licensing and supervising such
stations.
18
It would be strange if it cannot even require the licensees to render public service by
giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production
of television programs involves large expenditure and requires the use of equipment for which
huge investments have to be made. The dissent cites the claim of GMA Network that the grant of
free air time to the COMELEC for the duration of the 1998 campaign period would cost the
company P52,380,000, representing revenue it would otherwise earn if the air time were sold to
advertisers, and the amount of P6,600,850, representing the cost of producing a program for the
COMELEC Time, or the total amount of P58,980,850.
40

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is
based on the assumption that air time is "finished product" which, it is said, become the
property of the company, like oil produced from refining or similar natural resources after
undergoing a process for their production. But air time is not owned by broadcast companies. As
held in Red Lion Broadcasting Co. v. F.C.C.,
19
which upheld the right of a party personally
attacked to reply, "licenses to broadcast do not confer ownership of designated frequencies, but
only the temporary privilege of using them." Consequently, "a license permits broadcasting, but
the license has no constitutional right to be the one who holds the license or to monopolize a
radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment
which prevents the Government from requiring a licensee to share his frequency with others and
to conduct himself as a proxy or fiduciary with obligations to present those views and voices
which are representative of his community and which would otherwise, by necessity, be barred
from the airwaves."
20
As radio and television broadcast stations do not own the airwaves, no
private property is taken by the requirement that they provide air time to the COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air
lanes themselves 'are not property because they cannot be appropriated for the benefit of any
individual.'" (p. 5) That means neither the State nor the stations own the air lanes. Yet the
dissent also says that "The franchise holders can recover their huge investments only by selling
air time to advertisers." (p. 13) If air lanes cannot be appropriated, how can they be used to
produce air time which the franchise holders can sell to recover their investment? There is a
contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a
program and it is for such items as "sets and props," "video tapes," "miscellaneous (other rental,
supplies, transportation, etc.)," and "technical facilities (technical crew such as director and
cameraman as well as 'on air plugs')." There is no basis for this claim. Expenses for these items
will be for the account of the candidates. COMELEC Resolution No. 2983, 6(d) specifically
provides in this connection:
(d) Additional services such as tape-recording or video-taping of programs, the preparation
of visual aids, terms and condition thereof, and consideration to be paid therefor may be
arranged by the candidates with the radio/television station concerned. However, no
radio/television station shall make any discrimination among candidates relative to
charges, terms, practices or facilities for in connection with the services rendered.
It is unfortunate that in the effort to show that there is taking of private property worth millions
of pesos, the unsubstantiated charge is made that by its decision the Court permits the "grand
larceny of precious time," and allows itself to become "the people's unwitting oppressor." The
charge is really unfortunate. In Jackson v. Rosenbaun,
21
Justice Holmes was so incensed by the
resistance of property owners to the erection of party walls that he was led to say in his original
draft, "a statute, which embodies the community's understanding of the reciprocal rights and
duties of neighboring landowners, does not need to invoke the penalty larceny of the police power
in its justification." Holmes's brethren corrected his taste, and Holmes had to amend the passage
so that in the end it spoke only of invoking "the police power."
22
Justice Holmes spoke of the
"petty larceny" of the police power. Now we are being told of the "grand larceny [by means of the
police power] of precious air time."
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA
Network, Inc. a franchise for the operation of radio and television broadcasting stations. They
argue that although 5 of R.A. No. 7252 gives the government the power to temporarily use and
41

operate the stations of petitioner GMA Network or to authorize such use and operation, the
exercise of this right must be compensated.
The cited provision of. R.A. No. 7252 states:
Sec. 5. Right of Government. A special right is hereby reserved to the President of the
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or
disturbance of peace and order, to temporarily take over and operate the stations of the
grantee, to temporarily suspend the operation of any station in the interest of public
safety, security and public welfare, or to authorize the temporary use and operation
thereof by any agency of the Government, upon due compensation to the grantee, for the
use of said stations during the period when they shall be so operated.
The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of the GMA Network, Inc., This is not so. Under
92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television
stations but only the allocation of air time to the candidates for the purpose of ensuring, among
other things, equal opportunity, time, and the right to reply as mandated by the Constitution.
23

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg.
881, which is said to have amended R.A. No. 7252, actually antedated it.
24
The provision of 92
of B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, 4 of
the latter statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render
"adequate public service time" implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is to
enable the government to communicate with the people on matters of public interest. Thus, R.A.
No. 7252 provides:
Sec. 4. Responsibility to the Public. The grantee shall provide adequate public service
time to enable the Government, through the said broadcasting stations, to reach the
population on important public issues; provide at all times sound and balanced
programming; promote public participation such as in community programming; assist in
the functions of public information and education; conform to the ethics of honest
enterprise; and not use its station for the broadcasting of obscene and indecent language,
speech, act or scene, or for the dissemination of deliberately false information or wilful
misrepresentation, or to the detriment of the public interest, or to incite, encourage, or
assist in subversive or treasonable acts. (Emphasis added).
It is noteworthy that 40 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken, expressly
provided that the COMELEC Time should "be considered as part of the public service time said
stations are required to furnish the Government for the dissemination of public information and
education under their respective franchises or permits." There is no reason to suppose that 92
of B.P. Blg. 881 considers the COMELEC Time therein provided to be otherwise than as a public
service which petitioner is required to render under 4 of its charter (R.A. No. 7252). In sum, B.P.
Blg. 881, 92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty
voluntarily assumed by petitioner in accepting a public grant of privilege.
Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No. 2983-A, 2 of which states:
Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time", effective February 10, 1998 for candidates for President, Vice-President and
42

Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998. (Emphasis added).
This is because the amendment providing for the payment of "just compensation" is invalid,
being in contravention of 92 of B.P. Blg. 881 that radio and television time given during the
period of the campaign shall be "free of charge." Indeed, Resolution No. 2983 originally provided
that the time allocated shall be "free of charge," just as 92 requires such time to be given "free of
charge." The amendment appears to be a reaction to petitioner's claim in this case that the
original provision was unconstitutional because it allegedly authorized the taking of property
without just compensation.
The Solicitor General, relying on the amendment, claims that there should be no more dispute
because the payment of compensation is now provided for. It is basic, however, that an
administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since
2 of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in procuring free air
time and that "theoretically the COMELEC can demand all of the air time of such
stations."
25
Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily sequesters
radio and television time. What they claim is that because of the breadth of the statutory
language, the provision in question is susceptible of "unbridled, arbitrary and oppressive
exercise."
26

The contention has no basis. For one, the COMELEC is required to procure free air time for
candidates "within the area of coverage" of a particular radio or television broadcaster so that it
cannot, for example, procure such time for candidates outside that area. At what time of the day
and how much time the COMELEC may procure will have to be determined by it in relation to
the overall objective of informing the public about the candidates, their qualifications and their
programs of government. As stated in Osmea v. COMELEC, the COMELEC Time provided for in
92, as well as the COMELEC Space provided for in 90, is in lieu of paid ads which candidates
are prohibited to have under 11(b) of R.A. No. 6646. Accordingly, this objective must be kept in
mind in determining the details of the COMELEC Time as well as those of the COMELEC Space.
There would indeed be objection to the grant of power to the COMELEC if 92 were so detailed as
to leave no room for accommodation of the demands of radio and television programming. For
were that the case, there could be an intrusion into the editorial prerogatives of radio and
television stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to provide
free air time. They contend that newspapers and magazines are not similarly required as, in fact,
in Philippine Press Institute v. COMELEC,
27
we upheld their right to the payment of just
compensation for the print space they may provide under 90.
43

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to
the same treatment under the free speech guarantee of the Constitution as the print media.
There are important differences in the characteristics of the two media, however, which justify
their differential treatment for free speech purposes. Because of the physical limitations of the
broadcast spectrum, the government must, of necessity, allocate broadcast frequencies to those
wishing to use them. There is no similar justification for government allocation and regulation of
the print media.
28

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees
or licensees. The reason for this is that, as already noted, the government spends public funds
for the allocation and regulation of the broadcast industry, which it does not do in the case of the
print media. To require the radio and television broadcast industry to provide free air time for the
COMELEC Time is a fair exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and pervasive
influence of the broadcast media, "[n]ecessarily . . . the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print
media."
29

The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are
low income masses who find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be
within reach of a blaring radio or television set. The materials broadcast over the airwaves
reach every person of every age, persons of varying susceptibilities to persuasion, persons
of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or
offensive speech would he difficult to monitor or predict. The impact of the vibrant speech
is forceful and immediate. Unlike readers of the printed work, the radio audience has
lesser opportunity to cogitate, analyze, and reject the utterance. 30
Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of the
law has no basis. In addition, their plea that 92 (free air time) and 11(b) of R.A. No. 6646 (ban
on paid political ads) should be invalidated would pave the way for a return to the old regime
where moneyed candidates could monopolize media advertising to the disadvantage of
candidates with less resources. That is what Congress tried to reform in 1987 with the
enactment of R.A. No. 6646. We are not free to set aside the judgment of Congress, especially in
light of the recent failure of interested parties to have the law repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
State's Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-
C, 4 of the Constitution does not include the power to prohibit. In the first place, what the
COMELEC is authorized to supervise or regulate by Art. IX-C, 4 of the Constitution,
31
among
other things, is the use by media of information of their franchises or permits, while what
44

Congress (not the COMELEC) prohibits is the sale or donation of print space or air time for
political ads. In other words, the object of supervision or regulation is different from the object of
the prohibition. It is another fallacy for petitioners to contend that the power to regulate does not
include the power to prohibit. This may have force if the object of the power were the same.
In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the regulatory
provision in the statute. The other half is the mandate to the COMELEC to procure print space
and air time for allocation to candidates. As we said in Osmea v. COMELEC:
The term political "ad ban" when used to describe 11(b) of R.A. No. 6646, is misleading,
for even as 11(b) prohibits the sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself allocate to the candidates
space and time in the media. There is no suppression of political ads but only a
regulation of the time and manner of advertising.
xxx xxx xxx
. . . What is involved here is simply regulation of this nature. Instead of leaving
candidates to advertise freely in the mass media, the law provides for allocation, by the
COMELEC of print space and air time to give all candidates equal time and space for the
purpose of ensuring "free, orderly, honest, peaceful, and credible elections."
With the prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise their
qualifications and programs of government. More than merely depriving their qualifications and
programs of government. More than merely depriving candidates of time for their ads, the failure
of broadcast stations to provide air time unless paid by the government would clearly deprive the
people of their right to know. Art III, 7 of the Constitution provides that "the right of the people
to information on matters of public concern shall be recognized," while Art. XII, 6 states that
"the use of property bears a social function [and] the right to own, establish, and operate
economic enterprises [is] subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands."
To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to
see to it that the variety and vigor of public debate on issues in an election is maintained. For
while broadcast media are not mere common carriers but entities with free speech rights, they
are also public trustees charged with the duty of ensuring that the people have access to the
diversity of views on political issues. This right of the people is paramount to the autonomy of
broadcast media. To affirm the validity of 92, therefore, is likewise to uphold the people's right
to information on matters of public concern. The use of property bears a social function and is
subject to the state's duty to intervene for the common good. Broadcast media can find their just
and highest reward in the fact that whatever altruistic service they may render in connection
with the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and Quisumbing,
JJ., concur.


45

Separate Opinions
VITUG, J., separate opinion;
I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in
his ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in filing the
instant petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate
exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it
is, primordially, a business enterprise, it nevertheless, also addresses in many ways certain
imperatives of public service. In Stone vs. Mississippi (101, U.S. 814, cited in Cruz,
Constitutional Law, 1995 ed., p. 40.), a case involving a franchise to sell lotteries which
petitioner claims to be a contract which may not be impaired, the United States Supreme Court
opined:
. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants
of property and franchises may be made if they do not impair the supreme authority to
make laws for the right government of the State; but no Legislature can curtail the power
of its successors to make such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its
lawful exercise,i.e., (a) that its utilization is demanded by the interests of the public, and (b) that
the means employed are reasonably necessary, and not unduly oppressive, for the
accomplishment of the purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is nothing in the law that prohibits the COMELEC from
itself procuring airtime, perhaps longer than that which can reasonably be allocated, if it believes
that in so opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just compensation. The
power of eminent domain is a power inherent in sovereignty and requires no constitutional
provision to give it force. It is the rightful authority which exists in every sovereignty, to control
and regulate those rights of a public nature which pertain to its citizens in common, and to
appropriate and control individual property for the public benefit as the public safety, necessity,
convenience or welfare demand.
1
The right to appropriate private property to public use,
however, lies dormant in the state until legislative action is had, pointing out the occasions, the
modes, the conditions and agencies for its appropriation.
2

Section 92 of BP 881 states
Sec. 92. Comelec Time The Comelec shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio and television stations are hereby attended so as to
provide radio and television time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution
2983-A, the pertinent provision of which reads as follows:
46

Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time," effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with
radio and television time free of charge is a flagrant violation of the constitutional mandate that
private property shall not be taken for public use without just compensation. While it is inherent
in the State, the sovereign right to appropriate property has never been understood to include
taking property for public purposes without the duty and responsibility of ordering compensation
to the individual whose property has been sacrificed for the good of the community. Hence,
Section 9 Article III of the 1987 Constitution which reads "No private property shall be taken for
public use without just compensation," gives us two limitations on the power of eminent domain:
(1) the purpose of taking must be for public use and (2) just compensation must be given to the
owner of the private property.
There is, of course, no question that the taking of the property in the case at bar is for public
use, i.e. to ensure that air time is allocated equally among the candidates, however, there is no
justification for the taking without payment of just compensation. While Resolution No. 2983-A
has provided that just compensation shall be paid for the 30 minutes of prime time granted by
the television stations to respondent Comelec, we note that the resolution was
passed pursuant to Section 92 of BP 881 which mandates that radio and television time be
provided to respondent Comelec free of charge. Since the legislative intent is the controlling
element in determining the administrative powers, rights, privileges and immunities
granted,
3
respondent Comelec may, at any time, despite the resolution passed, compel television
and radio stations to provide it with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation
which cannot be validly done. Police power must be distinguished from the power of eminent
domain. In the exercise of police power, there is a restriction of property interest to promote
public welfare or interest which involves no compensable taking. When the power of eminent
domain, however, is exercised, property interest is appropriated and applied to some public
purpose, necessitating compensation therefor. Traditional distinctions between police power and
the power of eminent domain precluded application of both powers at the same time in the same
subject.
4
Hence, in the case of City of Baguio v. NAWASA,
5
the Court held that a law requiring
the transfer of all municipal waterworks systems to NAWASA in exchange for its assets of
equivalent value involved the exercise of eminent domain because the property involved was
wholesome and intended for public use. Property condemned under the exercise of police power,
on the other hand, is noxious or intended for noxious purpose and, consequently, is not
compensable. Police power proceeds from the principle that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his use of it
shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of
their property, nor injurious to the rights of the community. Rights of property, like all other
social and conventional rights, are subject to reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable restraints and regulations
established by law as the legislature, under the governing and controlling power vested in them
by the constitution, may think necessary and expedient.
6

In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found
occasion to note that recent trends show a mingling of the police power and the power of eminent
domain, with the latter being used as an implement of the former like the power of taxation.
Citing the cases of Berman v. Parker
7
and Penn Central Transportation Co. v. New York
City
8
where owners of the Grand Central Terminal who were not allowed to construct a multi-
story building to preserve a historic landmark were allowed certain compensatory rights to
47

mitigate the loss caused by the regulation, this Court is Small Landowners of the Philippines, Inc.
case held that measures prescribing retention limits for landowners under the Agrarian Reform
Law involved the exercise of police power for the regulation of private property in accordance with
the constitution. And, where to carry out the regulation, it became necessary to deprive owners
of whatever lands they may own in excess of the maximum area allowed, the Court held that
there was definitely a taking under the power of eminent domain for which payment of just
compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read
in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and
television stations during the campaign period to respondent Comelec, there is an exercise of
police power for the regulation of property in accordance with the Constitution. To the extent
however that Sec 92 of BP 881 mandates that airtime be provided free of charge to respondent
Comelec to be allocated equally among all candidates, the regulation exceeds the limits of police
power and should be recognized as a taking. In the case of Pennsylvania Coal v. Mahon,
9
Justice
Holmes laid down the limits of police power in this wise," The general rule is that while property
may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a
taking."
While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. It is a settled rule that neither acquisition of title nor
total destruction of value is essential to taking and it is usually in cases where title remains with
the private owner that inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable taking. A regulation which deprives
any person of the profitable use of his property constitutes a taking and entitles him to
compensation unless the invasion of rights is so slight as to permit the regulation to be justified
under the police power. Similarly, a police regulation which unreasonably restricts the right to
use business property for business purposes, amounts to taking of private property and the
owner may recover therefor.
10
It is also settled jurisprudence that acquisition of right of way
easement falls within the purview of eminent domain.
11

While there is no taking or appropriation of title to, and possession of the expropriated property
in the case at bar, there is compensable taking inasmuch as them is a loss of the earnings for
the airtime which the petitioner-intervenors are compelled to donate. It is a loss which, to
paraphrase Philippine Press Institute v. Comelec,
12
could hardly be considered "de minimis" if we
are to take into account the monetary value of the compulsory donation measured by the current
advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec,
13
we had occasion to state that newspapers
and other print media are not compelled to donate free space to respondent Comelec inasmuch
as this would be in violation of the constitutional provision that no private property shall be
taken for public use without just compensation. We find no cogent reason why radio and
television stations should be treated considering that their operating expenses as compared to
those of the newspaper and other print media publishers involve considerably greater amount of
financial resources.
The fact that one needs a franchise from government to establish a radio and television station
while no license is needed to start a newspaper should not be made a basis for treating
broadcast media any differently from the print media in compelling the former to "donate" airtime
to respondent Comelec. While no franchises and rights are granted except under the condition
that it shall be subject to amendment, alteration, or repeal by the Congress when the common
good so requires,
14
this provides no license for government to disregard the cardinal rule that
corporations with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.
48

ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and
television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code
1
which
compels all broadcast stations in the country "to provide radio and television time, free of charge,
during the period of the [election] campaigns," which the Commission on Elections shall allocate
"equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this
legal provision is unconstitutional because it confiscates private property without due process of
law and without payment of just compensation, and denies broadcast media equal protection of
the law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,
2
this Court ruled that print
media companies cannot be required to donate advertising space, free of charge, to the Comelec
for equal allocation among candidates, on the ground that such compulsory seizure of print
space is equivalent to a proscribed taking of private property for public use without payment of
just compensation.
3

The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente
V. Mendoza, holds, however, that the foregoing PPI doctrine applies only to print media, not to
broadcast (radio and TV) networks, arguing that "radio and television broadcasting companies,
which are given franchises, do not own the airwaves and frequencies through which they
transmit broadcast signals and images. They are merely given the temporary privilege of using
them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service." In other words,
the majority theorizes that the forced donation of air time to the Comelec is a means by which
the State gets compensation for the grant of the franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction that does not
make any real difference. Theory must yield to reality. I respectfully submit the following
arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises
and regulates their proper use. Thus, other than collecting supervision or regulatory fees which it
already does, it cannot exact any onerous and unreasonable post facto burdens from the
franchise holders, without due process and just compensation. Moreover, the invocation of the
"common good" does not excuse the unbridled and clearly excessive taking of a franchisee's
property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay
rental fees to the government for their use. Hence, the seizure of air time cannot be justified by
the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's humongous
investments amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence,
a forced donation of broadcast time is in actual fact a taking of such investments without due
process and without payment of just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
49

"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It merely contends
that "broadcasting, whether by radio or by television stations, is licensed by the government.
Airwave frequencies have to be allocated as there are more individuals who want to broadcast
than there are frequencies to assign. A franchise is thus a privilege subject among other thing . .
. to amendment, alteration or repeal by the Congress when the common good so requires."
4
True
enough, a "franchise started out as a 'royal privilege or [a] branch of the King's prerogative,
subsisting in the hands of a subject.'"
5

Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters,
mineral, coal, petroleum, and other mineral oils, all forces, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by
the State," it is silent as to the ownership of the airwaves and frequencies. It is then reasonable
to say that no one owns them. Like the air we breathe and the sunshine that sustains life, the air
lanes themselves "are not property because they cannot be appropriated for the benefit of any
individual,"
6
but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies, the State in
the exercise of its police power allocates, supervises and regulates their use, so as to derive
maximum benefit for the general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the airwaves by assigning
to such companies their respective frequencies. The purpose is not to grant them the privilege of
using public property. For, as earlier stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by law to
institutionalize this regulation of the air lanes. To cover the administrative cost of supervision
and regulation, the NTC levies charges, which have been revised upwards in NTC Memorandum
Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA
Network, Inc., for the year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC
"supervision and regulation fee," as borne out by its Audited Consolidated Financial Statements
for said year, on file with the Securities and Exchange Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately compensated by the
broadcast media through the payment of fees unilaterally set by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature
and purpose of a franchise: other than serving the public benefit which is subject to government
regulation, it must also be to the franchise holder's advantage. Once granted, a franchise (not the
air lanes) together with concomitant private rights, becomes property of the grantee.
7
It is
regarded by law precisely as other property and, as any other property, it is safeguarded by the
Constitution from arbitrary revocation or impairment.
8
The rights under a franchise can be
neither taken nor curtailed for public use or purpose, even by the government as the grantor,
without payment of just compensation
9
as guaranteed under our fundamental law.
10
The fact
that the franchise relates to public use or purpose does not entitle the state to abrogate or impair
its use without just compensation.
11

The majority further claims that, constitutionally,
12
franchises are always subject to alteration
by Congress, "when the common good so requires." The question then boils down to this: Does
Section 92 of the Omnibus Election Code constitute a franchise modification for the "common
good," or an "unlawful taking of private property"? To answer this question, I go back
50

to Philippine Press Institute, Inc. vs. Commission on Elections, where a unanimous Supreme Court
held:
13

To compel print media companies to donate "Comelec space" of the dimensions specified
in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of
private personal property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the period from 6
March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as
often as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimistemporary limitation or
restraint upon the use of private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed.
(Emphasis in original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and
recurrence of the "donation" of air time that Comelec can demand from radio and TV stations.
There are no guidelines or standards provided as to the choice of stations, time and frequency of
airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of
a station. The fact that Comelec has not exercised its granted power arbitrarily is immaterial
because the law, as worded, admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the constitutional principle
that a governmental purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the absence of such
reasonable and definite standards in a legislation of its character is fatal. Where, as in the
case of the above paragraphs, the majority of the Court could discern "an overbreadth
that makes possible oppressive or capricious application" of the statutory provisions, the
line dividing the valid from the constitutionally infirm has been crossed. Such provisions
offend the constitutional principle that "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the
Comelec) unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the government muscle."
16

51

Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable.
In their Memorandum,
17
petitioners allege (and this has not been rebutted at all) that during the
1992 election period, GMA Network has been compelled to donate P22,498.560 worth of
advertising revenues; and for the current election period, GMA stands to lose a staggering
P58,980,850. Now, clearly and most obviously, these amounts are not inconsequential or de
minimis. They constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation of public
utilities must not have the effect of depriving an owner of his property without due process of
law, nor of confiscating or appropriating private property without due process of law, nor of
confiscating or appropriating private property without just compensation, nor of limiting or
prescribing irrevocably vested rights or privileges lawfully acquired under a charter or franchise."
The power to regulate is subject to these constitutional limits.
18
Consequently, "rights under a
franchise cannot be taken or damaged for a public use without the making of just compensation
therefor."
19
To do so is clearly beyond the power of the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns the air lanes and
that, by its grant of a franchise, it should thus receive compensation for the use of said
frequencies. I say, however, that by remitting unreasonably high "annual fees and charges,"
which as earlier stated amounts to millions of pesos yearly, television stations are in effect
paying rental fees for the use (not just the regulation) of said frequencies. Except for the annual
inspection conducted by the NTC, no other significant service is performed by the government in
exchange for the enormous fees charged the stations. Evidently, the sums collected by the NTC
exceed the cost of services performed by it, and are therefore more properly understood as rental
fees for the use of the frequencies granted them.
20

Since the use of the air frequencies is already paid for annually by the broadcast entities, there is
no basis for the government, through the Comelec, to compel unbridled donation of the air time
of said companies without due process and without payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier like oil, minerals and coal
once the license to exploit and develop them is granted to a private corporation, the
government can no longer arbitrarilyconfiscate or appropriate them gratis under the guise of
serving the common good. Crude oil, for instance, once explored, drilled, and refined is thereafter
considered the property of the authorized explorer (or refiner) which can sell it to the public and
even to the government itself. The State simply cannot demand free gasoline for the operation of
public facilities even if they benefit the people in general. It still has to pay compensation
therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee's use of a state-granted franchise or privilege
which occasions its acquisition of private property in the form of broadcast facilities and its
production of air time. These properties are distinct from its franchise.
21
The 1996 Audited
Consolidated Balance Sheet of Petitioner GMA, on file with the SEC, shows that its "property and
equipment," which it uses in its broadcast function, amount to over one billion pesos or, to be
exact, P1,245,741,487.
22
This does not include the cost of producing the programs to be
broadcast, talent fees and other aspects of broadcasting. In their Memorandum,
23
petitioners
52

explain that the total cost for GMA to stay on the air (for television) at present is approximately
P136,100 per hour, which includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The point is: The franchise holders can recover their huge
investments only by selling air time to advertisers. This is their "product," their valuable property
which Section 92 forcibly takes from them in massive amounts without payment of just
compensation.
It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo,
an unbridled taking of private property may be allowed. If such appropriation were only, to use
the words of PPI vs. Comelec, de minimis or insignificant say, one hour once or twice a month
perhaps, it can be justified by the promotion of the "common good." But a taking in the
gargantuan amount of over P58 million from Petitioner GMA for the 1998 election season alone is
an actual seizure of its private investment, and not at all a reasonable "compensation" or
"alteration" for the "common good." Certainly, this partakes of CONFISCATION of private
property.
What makes the taking of air time even more odious is its ex post facto nature. When the
broadcast companies acquired their franchises and set up their expensive facilities, they were
not informed of the immensity of the donations they are now compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the
"finished product" after a station uses its own broadcast facilities. The frequency is lust the
specific "route" or "channel" by which this medium reaches the TV sets of the general public.
Technically, therefore, the wholesale alteration by Section 92 of all broadcast franchise would
appear unrelated to the compelled donations. While the express modification is in the franchise,
what Section 92 really does is that it takes away the end product of the facilities which were set
up through the use of the entrepreneurs' investments and the broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the
need for just compensation. Thus, Section 2 of its Resolution No. 2983-A states that "[e]very
radio broadcasting and television station operating under franchise shall grant the Commission,
upon payment of just compensation, at least thirty (30) minutes of prime time daily to be known
as 'Comelec Time' . . ." And yet, even with such a judicious legal position taken by the very
agency tasked by the Constitution to administer elections, the majority still insists on an
arbitrary seizure of precious property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise
24
is no argument for seizing its
profits. The State cannot rob the rich to feed the poor in the guise of promoting the "common
good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded from GMA is huge
and exorbitant, amounting, I repeat, to over P58 million for the 1998 election season alone. If the
air time required from "every radio and television station" in the country in the magnitude stated
in the aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be
staggering in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has
required payment of print media ads but, in this case, compels broadcast stations to donate their
end product on a massive scale. The simplistic distinction given that radio and TV stations are
mere grantees of government franchises while newspaper companies are not does not justify
the grand larceny of precious air time. This is a violation not only of private property, but also of
the constitutional right to equal protection itself. The proffered distinction between print and
broadcast media is too insignificant and too flimsy to be a valid justification for the
53

discrimination. The print and broadcast media are equal in the sense that both derive their
revenues principally from paid ads. They should thus be treated equally by the law in respect of
such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:
1. No person, whether rich or poor, shall be deprived of property without due process.
25

2. Such property shall not be taken by the government, even for the use of the general public,
without first paying just compensation to the owner.
26

3. No one, regardless of social or financial status, shall be denied equal protection of the law.
27

The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to rely
on the nebulous legal theory that broadcast stations are mere recipients of state-granted
franchises which can be altered or withdrawn anytime or otherwise burdened with post
facto elephantine yokes. By this short-circuited rationalization, the majority blithely ignores the
private entrepreneurs' billion-peso investments and the broadcast professionals' grit and toil in
transforming these invisible franchises into merchandisable property; and conveniently forgets
the grim reality that the taking of honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government,
28
against which these constitutional rights to property were in
the first place written, prudently agrees to respect them and to pay adequate compensation for
their taking. But ironically, the majority rejects the exemplary observance by the government of
the people's rights and insists on the confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional
rights of the citizens and their ultimate protector against the tyrannies of their own government.
I am afraid that by this unfortunate Decision, the majority, in this instance, has instead
converted this honorable and majestic Court into the people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election
Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.

Separate Opinions
VITUG, J., separate opinion;
I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in
his ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in filing the
instant petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate
exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it
is, primordially, a business enterprise, it nevertheless, also addresses in many ways certain
imperatives of public service. In Stone vs. Mississippi (101, U.S. 814, cited in Cruz,
Constitutional Law, 1995 ed., p. 40.), a case involving a franchise to sell lotteries which
petitioner claims to be a contract which may not be impaired, the United States Supreme Court
opined:
54

. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants
of property and franchises may be made if they do not impair the supreme authority to
make laws for the right government of the State; but no Legislature can curtail the power
of its successors to make such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its
lawful exercise,i.e., (a) that its utilization is demanded by the interests of the public, and (b) that
the means employed are reasonably necessary, and not unduly oppressive, for the
accomplishment of the purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is nothing in the law that prohibits the COMELEC from
itself procuring airtime, perhaps longer than that which can reasonably be allocated, if it believes
that in so opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just compensation. The
power of eminent domain is a power inherent in sovereignty and requires no constitutional
provision to give it force. It is the rightful authority which exists in every sovereignty, to control
and regulate those rights of a public nature which pertain to its citizens in common, and to
appropriate and control individual property for the public benefit as the public safety, necessity,
convenience or welfare demand.
1
The right to appropriate private property to public use,
however, lies dormant in the state until legislative action is had, pointing out the occasions, the
modes, the conditions and agencies for its appropriation.
2

Section 92 of BP 881 states
Sec. 92. Comelec Time The Comelec shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio and television stations are hereby attended so as to
provide radio and television time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution
2983-A, the pertinent provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time," effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with
radio and television time free of charge is a flagrant violation of the constitutional mandate that
private property shall not be taken for public use without just compensation. While it is inherent
in the State, the sovereign right to appropriate property has never been understood to include
taking property for public purposes without the duty and responsibility of ordering compensation
to the individual whose property has been sacrificed for the good of the community. Hence,
Section 9 Article III of the 1987 Constitution which reads "No private property shall be taken for
public use without just compensation," gives us two limitations on the power of eminent domain:
55

(1) the purpose of taking must be for public use and (2) just compensation must be given to the
owner of the private property.
There is, of course, no question that the taking of the property in the case at bar is for public
use, i.e. to ensure that air time is allocated equally among the candidates, however, there is no
justification for the taking without payment of just compensation. While Resolution No. 2983-A
has provided that just compensation shall be paid for the 30 minutes of prime time granted by
the television stations to respondent Comelec, we note that the resolution was
passed pursuant to Section 92 of BP 881 which mandates that radio and television time be
provided to respondent Comelec free of charge. Since the legislative intent is the controlling
element in determining the administrative powers, rights, privileges and immunities
granted,
3
respondent Comelec may, at any time, despite the resolution passed, compel television
and radio stations to provide it with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation
which cannot be validly done. Police power must be distinguished from the power of eminent
domain. In the exercise of police power, there is a restriction of property interest to promote
public welfare or interest which involves no compensable taking. When the power of eminent
domain, however, is exercised, property interest is appropriated and applied to some public
purpose, necessitating compensation therefor. Traditional distinctions between police power and
the power of eminent domain precluded application of both powers at the same time in the same
subject.
4
Hence, in the case of City of Baguio v. NAWASA,
5
the Court held that a law requiring
the transfer of all municipal waterworks systems to NAWASA in exchange for its assets of
equivalent value involved the exercise of eminent domain because the property involved was
wholesome and intended for public use. Property condemned under the exercise of police power,
on the other hand, is noxious or intended for noxious purpose and, consequently, is not
compensable. Police power proceeds from the principle that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his use of it
shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of
their property, nor injurious to the rights of the community. Rights of property, like all other
social and conventional rights, are subject to reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable restraits and regulations established
by law as the legislature, under the governing and controlling power vested in them by the
constitution, may think necessary and expedient.
6

In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found
occasion to note that recent trends show a mingling of the police power and the power of eminent
domain, with the latter being used as an implement of the former like the power of taxation.
Citing the cases of Berman v. Parker
7
and Penn Central Transportation Co. v. New York
City
8
where owners of the Grand Central Terminal who were not allowed to construct a multi-
story building to preserve a historic landmark were allowed certain compensatory rights to
mitigate the loss caused by the regulation, this Court is Small Landowners of the Philippines, Inc.
case held that measures prescribing retention limits for landowners under the Agrarian Reform
Law involved the exercise of police power for the regulation of private property in accordance with
the constitution. And, where to carry out the regulation, it became necessary to deprive owners
of whatever lands they may own in excess of the maximum area allowed, the Court held that
there was definitely a taking under the power of eminent domain for which payment of just
compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read
in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and
television stations during the campaign period to respondent Comelec, there is an exercise of
police power for the regulation of property in accordance with the Constitution. To the extent
however that Sec 92 of BP 881 mandates that airtime be provided free of charge to respondent
Comelec to be allocated equally among all candidates, the regulation exceeds the limits of police
power and should be recognized as a taking. In the case of Pennsylvania Coal v. Mahon,
9
Justice
56

Holmes laid down the limits of police power in this wise," The general rule is that while property
may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a
taking."
While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. It is a settled rule that neither acquisition of title nor
total destruction of value is essential to taking and it is usually in cases where title remains with
the private owner that inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable taking. A regulation which deprives
any person of the profitable use of his property constitutes a taking and entitles him to
compensation unless the invasion of rights is so slight as to permit the regulation to be justified
under the police power. Similarly, a police regulation which unreasonably restricts the right to
use business property for business purposes, amounts to taking of private property and the
owner may recover therefor.
10
It is also settled jurisprudence that acquisition of right of way
easement falls within the purview of eminent domain.
11

While there is no taking or appropriation of title to, and possession of the expropriated property
in the case at bar, there is compensable taking inasmuch as them is a loss of the earnings for
the airtime which the petitioner-intervenors are compelled to donate. It is a loss which, to
paraphrase Philippine Press Institute v. Comelec,
12
could hardly be considered "de minimis" if we
are to take into account the monetary value of the compulsory donation measured by the current
advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec,
13
we had occasion to state that newspapers
and other print media are not compelled to donate free space to respondent Comelec inasmuch
as this would be in violation of the constitutional provision that no private property shall be
taken for public use without just compensation. We find no cogent reason why radio and
television stations should be treated considering that their operating expenses as compared to
those of the newspaper and other print media publishers involve considerably greater amount of
financial resources.
The fact that one needs a franchise from government to establish a radio and television station
while no license is needed to start a newspaper should not be made a basis for treating
broadcast media any differently from the print media in compelling the former to "donate" airtime
to respondent Comelec. While no franchises and rights are granted except under the condition
that it shall be subject to amendment, alteration, or repeal by the Congress when the common
good so requires,
14
this provides no license for government to disregard the cardinal rule that
corporations with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and
television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code
1
which
compels all broadcast stations in the country "to provide radio and television time, free of charge,
during the period of the [election] campaigns," which the Commission on Elections shall allocate
"equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this
legal provision is unconstitutional because it confiscates private property without due process of
law and without payment of just compensation, and denies broadcast media equal protection of
the law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,
2
this Court ruled that print
media companies cannot be required to donate advertising space, free of charge, to the Comelec
57

for equal allocation among candidates, on the ground that such compulsory seizure of print
space is equivalent to a proscribed taking of private property for public use without payment of
just compensation.
3

The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente
V. Mendoza, holds, however, that the foregoing PPI doctrine applies only to print media, not to
broadcast (radio and TV) networks, arguing that "radio and television broadcasting companies,
which are given franchises, do not own the airwaves and frequencies through which they
transmit broadcast signals and images. They are merely given the temporary privilege of using
them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service." In other words,
the majority theorizes that the forced donation of air time to the Comelec is a means by which
the State gets compensation for the grant of the franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction that does not
make any real difference. Theory must yield to reality. I respectfully submit the following
arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises
and regulates their proper use. Thus, other than collecting supervision or regulatory fees which it
already does, it cannot exact any onerous and unreasonable post facto burdens from the
franchise holders, without due process and just compensation. Moreover, the invocation of the
"common good" does not excuse the unbridled and clearly excessive taking of a franchisee's
property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay
rental fees to the government for their use. Hence, the seizure of air time cannot be justified by
the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's humongous
investments amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence,
a forced donation of broadcast time is in actual fact a taking of such investments without due
process and without payment of just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It merely contends
that "broadcasting, whether by radio or by television stations, is licensed by the government.
Airwave frequencies have to be allocated as there are more individuals who want to broadcast
than there are frequencies to assign. A franchise is thus a privilege subject among other thing . .
. to amendment, alteration or repeal by the Congress when the common good so requires."
4
True
enough, a "franchise started out as a 'royal privilege or [a] branch of the King's prerogative,
subsisting in the hands of a subject.'"
5

Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters,
mineral, coal, petroleum, and other mineral oils, all forces, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by
the State," it is silent as to the ownership of the airwaves and frequencies. It is then reasonable
58

to say that no one owns them. Like the air we breathe and the sunshine that sustains life, the air
lanes themselves "are not property because they cannot be appropriated for the benefit of any
individual,"
6
but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies, the State in
the exercise of its police power allocates, supervises and regulates their use, so as to derive
maximum benefit for the general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the airwaves by assigning
to such companies their respective frequencies. The purpose is not to grant them the privilege of
using public property. For, as earlier stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by law to
institutionalize this regulation of the air lanes. To cover the administrative cost of supervision
and regulation, the NTC levies charges, which have been revised upwards in NTC Memorandum
Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA
Network, Inc., for the year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC
"supervision and regulation fee," as borne out by its Audited Consolidated Financial Statements
for said year, on file with the Securities and Exchange Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately compensated by the
broadcast media through the payment of fees unilaterally set by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature
and purpose of a franchise: other than serving the public benefit which is subject to government
regulation, it must also be to the franchise holder's advantage. Once granted, a franchise (not the
air lanes) together with concomitant private rights, becomes property of the grantee.
7
It is
regarded by law precisely as other property and, as any other property, it is safeguarded by the
Constitution from arbitrary revocation or impairment.
8
The rights under a franchise can be
neither taken nor curtailed for public use or purpose, even by the government as the grantor,
without payment of just compensation
9
as guaranteed under our fundamental law.
10
The fact
that the franchise relates to public use or purpose does not entitle the state to abrogate or impair
its use without just compensation.
11

The majority further claims that, constitutionally,
12
franchises are always subject to alteration
by Congress, "when the common good so requires." The question then boils down to this: Does
Section 92 of the Omnibus Election Code constitute a franchise modification for the "common
good," or an "unlawful taking of private property"? To answer this question, I go back
to Philippine Press Institute, Inc. vs. Commission on Elections, where a unanimous Supreme Court
held:
13

To compel print media companies to donate "Comelec space" of the dimensions specified
in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of
private personal property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the period from 6
March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as
often as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or
restraint upon the use of private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed.
(Emphasis in original)
59

"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and
recurrence of the "donation" of air time that Comelec can demand from radio and TV stations.
There are no guidelines or standards provided as to the choice of stations, time and frequency of
airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of
a station. The fact that Comelec has not exercised its granted power arbitrarily is immaterial
because the law, as worded, admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the constitutional principle
that a governmental purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the absence of such
reasonable and definite standards in a legislation of its character is fatal. Where, as in the
case of the above paragraphs, the majority of the Court could discern "an overbreadth
that makes possible oppressive or capricious application" of the statutory provisions, the
line dividing the valid from the constitutionally infirm has been crossed. Such provisions
offend the constitutional principle that "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the
Comelec) unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the government muscle."
16

Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable.
In their Memorandum,
17
petitioners allege (and this has not been rebutted at all) that during the
1992 election period, GMA Network has been compelled to donate P22,498.560 worth of
advertising revenues; and for the current election period, GMA stands to lose a staggering
P58,980,850. Now, clearly and most obviously, these amounts are not inconsequential or de
minimis. They constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation of public
utilities must not have the effect of depriving an owner of his property without due process of
law, nor of confiscating or appropriating private property without due process of law, nor of
confiscating or appropriating private property without just compensation, nor of limiting or
prescribing irrevocably vested rights or privileges lawfully acquired under a charter or franchise."
The power to regulate is subject to these constitutional limits.
18
Consequently, "rights under a
franchise cannot be taken or damaged for a public use without the making of just compensation
therefor."
19
To do so is clearly beyond the power of the legislature to regulate.
60

II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns the air lanes and
that, by its grant of a franchise, it should thus receive compensation for the use of said
frequencies. I say, however, that by remitting unreasonably high "annual fees and charges,"
which as earlier stated amounts to millions of pesos yearly, television stations are in effect
paying rental fees for the use (not just the regulation) of said frequencies. Except for the annual
inspection conducted by the NTC, no other significant service is performed by the government in
exchange for the enormous fees charged the stations. Evidently, the sums collected by the NTC
exceed the cost of services performed by it, and are therefore more properly understood as rental
fees for the use of the frequencies granted them.
20

Since the use of the air frequencies is already paid for annually by the broadcast entities, there is
no basis for the government, through the Comelec, to compel unbridled donation of the air time
of said companies without due process and without payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier like oil, minerals and coal
once the license to exploit and develop them is granted to a private corporation, the
government can no longer arbitrarilyconfiscate or appropriate them gratis under the guise of
serving the common good. Crude oil, for instance, once explored, drilled, and refined is thereafter
considered the property of the authorized explorer (or refiner) which can sell it to the public and
even to the government itself. The State simply cannot demand free gasoline for the operation of
public facilities even if they benefit the people in general. It still has to pay compensation
therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee's use of a state-granted franchise or privilege
which occasions its acquisition of private property in the form of broadcast facilities and its
production of air time. These properties are distinct from its franchise.
21
The 1996 Audited
Consolidated Balance Sheet of Petitioner GMA, on file with the SEC, shows that its "property and
equipment," which it uses in its broadcast function, amount to over one billion pesos or, to be
exact, P1,245,741,487.
22
This does not include the cost of producing the programs to be
broadcast, talent fees and other aspects of broadcasting. In their Memorandum,
23
petitioners
explain that the total cost for GMA to stay on the air (for television) at present is approximately
P136,100 per hour, which includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The point is: The franchise holders can recover their huge
investments only by selling air time to advertisers. This is their "product," their valuable property
which Section 92 forcibly takes from them in massive amounts without payment of just
compensation.
It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo,
an unbridled taking of private property may be allowed. If such appropriation were only, to use
the words of PPI vs. Comelec, de minimis or insignificant say, one hour once or twice a month
perhaps, it can be justified by the promotion of the "common good." But a taking in the
gargantuan amount of over P58 million from Petitioner GMA for the 1998 election season alone is
an actual seizure of its private investment, and not at all a reasonable "compensation" or
"alteration" for the "common good." Certainly, this partakes of CONFISCATION of private
property.
61

What makes the taking of air time even more odious is its ex post facto nature. When the
broadcast companies acquired their franchises and set up their expensive facilities, they were
not informed of the immensity of the donations they are now compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the
"finished product" after a station uses its own broadcast facilities. The frequency is lust the
specific "route" or "channel" by which this medium reaches the TV sets of the general public.
Technically, therefore, the wholesale alteration by Section 92 of all broadcast franchise would
appear unrelated to the compelled donations. While the express modification is in the franchise,
what Section 92 really does is that it takes away the end product of the facilities which were set
up through the use of the entrepreneurs' investments and the broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the
need for just compensation. Thus, Section 2 of its Resolution No. 2983-A states that "[e]very
radio broadcasting and television station operating under franchise shall grant the Commission,
upon payment of just compensation, at least thirty (30) minutes of prime time daily to be known
as 'Comelec Time' . . ." And yet, even with such a judicious legal position taken by the very
agency tasked by the Constitution to administer elections, the majority still insists on an
arbitrary seizure of precious property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise
24
is no argument for seizing its
profits. The State cannot rob the rich to feed the poor in the guise of promoting the "common
good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded from GMA is huge
and exorbitant, amounting, I repeat, to over P58 million for the 1998 election season alone. If the
air time required from "every radio and television station" in the country in the magnitude stated
in the aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be
staggering in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has
required payment of print media ads but, in this case, compels broadcast stations to donate their
end product on a massive scale. The simplistic distinction given that radio and TV stations are
mere grantees of government franchises while newspaper companies are not does not justify
the grand larceny of precious air time. This is a violation not only of private property, but also of
the constitutional right to equal protection itself. The proffered distinction between print and
broadcast media is too insignificant and too flimsy to be a valid justification for the
discrimination. The print and broadcast media are equal in the sense that both derive their
revenues principally from paid ads. They should thus be treated equally by the law in respect of
such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:
1. No person, whether rich or poor, shall be deprived of property without due process.
25

2. Such property shall not be taken by the government, even for the use of the general public,
without first paying just compensation to the owner.
26

3. No one, regardless of social or financial status, shall be denied equal protection of the law.
27

The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to rely
on the nebulous legal theory that broadcast stations are mere recipients of state-granted
62

franchises which can be altered or withdrawn anytime or otherwise burdened with post
facto elephantine yokes. By this short-circuited rationalization, the majority blithely ignores the
private entrepreneurs' billion-peso investments and the broadcast professionals' grit and toil in
transforming these invisible franchises into merchandisable property; and conveniently forgets
the grim reality that the taking of honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government,
28
against which these constitutional rights to property were in
the first place written, prudently agrees to respect them and to pay adequate compensation for
their taking. But ironically, the majority rejects the exemplary observance by the government of
the people's rights and insists on the confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional
rights of the citizens and their ultimate protector against the tyrannies of their own government.
I am afraid that by this unfortunate Decision, the majority, in this instance, has instead
converted this honorable and majestic Court into the people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election
Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.
Footnotes
1 Reiterated in Kapisanan ng mga Broadkaster sa Pilipinas (Negros Occidental
Chapter) v. COMELEC, (res.), G.R. No. 132749, April 2, 1998.
2 Emergency Powers Cases [Araneta v. Dinglasan], 84 Phil. 368 (1949), Iloilo Palay
and Corn Planters Ass'n v. Feliciano, 121 Phil. 358 (1965); Philconsa v. Gimenez,
122 Phil. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317 (1991).
3 Lawyers League for a Better Philippines v. Aquino, G.R. Nos. 73748, 73972 and
73990, May 22, 1986; In re Bermudez, 145 SCRA 160 (1986); Tatad v. Garcia, Jr.,
243 SCRA 436, 473 (1995) (Mendoza, J., concurring).
4 CONST., ART. VI, 24-25 and 29.
5 In Valmonte v. Philippine Charity Sweepstakes Office, (res), G.R. No. 78716,
Sept. 22, 1987, we held that the party bringing a suit challenging the
constitutionality of a law must show "not only that the law is invalid, but also that
he has sustained or is in immediate 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 complained of."
(Emphasis added)
6 Art. III, 1 provides: "No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection of
the laws."
7 Id., 9 provides: "Private Property shall not be taken for public use without just
compensation.
8 Memorandum for Petitioners, pp. 21-28.
63

9 Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA 628 (1985); Red Lion
Broadcasting Corp. Co. v. FCC, 395 U.S. 367, 23 L. Ed2d 371 (1969). See The
Radio Act (Act No. 3846, as amended), 3(c) & (d).
10 Art, XII, 11.
11 Red Lion Broadcasting Corp. v. FCC, 395 U.S. at 390, 23 L.Ed.2d at 389.
12 E.g., OWEN M. FISS, THE IRONY OF THE FREE SPEECH 2-3 (1996) ("Surely
the state can be an oppressor, but it may also be a source of freedom . . . In some
instances, instrumentalities of the state will try to stifle free and open debate, and
the First Amendment is the tried-and-true mechanism that stops or prevents such
abuse of state power. In other instances, however, the state may have to further
the robustness of public debate . . . It may have to allocate public resources . . . to
those whose voices would not otherwise be heard in the public square."); CASS R.
SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 50-51 (1993)
("The idea that threats to speech stem from the government is undoubtedly
correct, but as usually understood, it is far too simple. Sometimes threats come
from what seems to be the private sphere, and, much more fundamentally, these
threats could not be made without legal entitlements that enable some private
actors but not others to speak and to be heard . . . [Government regulation] may
therefore be necessary.")
13 CASS R. SUNSTEIN, id., at 85 (emphasis added).
14 32 Phil. 541 (1915).
15 The Court said:
Considerable expenditures of public money have been made in the past and
continue to be made annually for the purpose of securing the safety of vessels
plying in Philippine waters. [Here the Court enumerated many government
facilities to make the coastwise transportation safe.] Can it be fairly contended
that a regulation is unreasonable which requires vessels licensed to engage in the
interisland trade, in whose behalf the public funds are so lavishly expended, to
hold themselves in readiness to carry the public mails when duly tendered for
transportation, and to give such reasonable notice of their sailing hours as will
insure the prompt dispatch of all mails ready for delivery at the hours thus
designated? Id., at 552.
16 241 SCRA 486 (1995).
17 190 SCRA 717, 734 (1990) (italics by the Court).
18 For example, under the Radio Act (Act No. 3846, as amended), the government
performs, inter alia, the following functions:
Sec. 3. The Secretary of Public Works and Communications is hereby empowered,
to regulate the construction or manufacture, possession, control, sale and transfer
or radio transmitters or transceivers (combination transmitter-receiver) and the
establishment, use, the operation of all radio stations and of all form of radio
communications and transmissions within the Philippines. In addition to the
above he shall have the following specific powers and duties;
64

xxx xxx xxx
(c) He shall assigns call letter and assign frequencies for each station licensed by
him for each station established by virtue of a franchise granted by the Congress
of the Philippines and specify the stations to which each of such frequencies may
be used;
(d) He shall promulgate rules and regulations to prevent and eliminate
interference between stations and carry out the provisions of this Act and the
provisions of the International Radio Regulations:Provided, however, That changes
in the frequencies or in the authorized power, or in the character of omitted
signals, or in the type of the power supply, or in the hours of operations of any
licensed stations, shall not be made without first giving the station license a
hearing.
19 395 U.S. at 394, 23 L.Ed.2d at 391, quoting 47 U.S.C. 301.
20 395 U.S. at 389, 23 L.Ed.2d at 388-389.
21 260 U.S. 22, 67 L.Ed. 107 (1922).
22 260 U.S. at 31, 67 L.Ed. at 112. HOLMES-LASKI LETTERS 457, quoted in P.
FREUND, A. SUTHERLAND, M. HOWE AND B. BROWN, CONSTITUTION LAW,
CASES AND OTHER PROBLEMS 1095 (1978).
23 Art. IX-C, 4.
24 B.P. Blg. 881 took effect on Dec. 3, 1985, whereas R.A. No. 7252 took effect on
March 20, 1992.
25 Memorandum for Petitioners, p. 17.
26 Ibid.
27 244 SCRA 272 (1995).
28 In the United States, because of recognition of these differences in the
characteristics of news media, it has been held that broadcast stations may be
required to give persons subjected to personal attack during discussion of an
important public issue the right to reply. (Red Lion Broadcasting Corp. v. FCC,
395 U.S. 367, 23 L.Ed.2d 371 (1969), but similar "right of reply" is inapplicable to
newspapers. It was pointed out that a statute providing for such right "operates as
a command in the same sense as a statute or regulation forbidding [the
newspaper] to publish specified matter . . . [It] exacts a penalty on the basis of the
content of a newspaper. The first phase of the penalty [is] exacted in terms of the
cost in printing and in taking up space that could be devoted to other material the
newspaper may have preferred to print . . . [Faced with such a penalty] editors
might well conclude that the safe course is to avoid controversy. [Thus, the
government-enforced] right of access inescapably "dampens the vigor and limits
the variety of public debate." (Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241,
4L.Ed.2d 730 (1974))
29 Eastern Broadcasting (DYRE) Corporation v. Dans, Jr., 137 SCRA at 635.
65

30 Id., at 635-636.
31 This provision reads: "The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all franchises or permits for
the operation of transportation and other utilities, media of communication or
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space, and the rights
to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections."
ROMERO, J., dissenting;
1 Cooley, Thomas, II A Treatise on Constitutional Limitations, pp. 1110, [1927].
2 Supra, at p. 1119.
3 Horack, Frank, Sutherland Statutory Construction, p. 279 [1939].
4 Association of Small Landowners of the Philippines, Inc. vs. Secretary of
Agrarian Reform, 175 SCRA 343 [1989].
5 108 Phil. 144.
6 See Cooley, Thomas II Constitutional Limitations, 8th Ed, pp. 1224 [1927].
7 348 US 1954 (1964).
8 438 US 104.
9 260 US 393.
10 Cooley, Thomas, II Constitutional Limitations, pp. 1161 [1927].
11 Napocor v. CA, 129 SCRA 665 [1984]; Garcia v. CA, 102 SCRA 597 [1981];
Republic v. PLDT, 26 SCRA 620 [1969].
12 244 SCRA 272 [1995].
13 Supra.
14 See Section 11, Article XII of the 1987 Constitution.
PANGANIBAN, J., dissenting;
1 92 of BP Blg. 881 (Omnibus Election Code) provides:
Sec. 92. Comelec time. The Commission shall procure radio and television time
to be known as "Comelec Time" which shall be allocated equally and impartially
among the candidates within the area of coverage of all radio and television
stations. For this purpose, the franchise of all radio broadcasting and television
66

stations are hereby amended so as to provide radio or television time, free of
charge, during the period of the campaign.
2 244 SCRA 272, May 22, 1995, per Feliciano, J.
3 9, Art. III of the Constitution provides:
Sec. 9. Private property shall not be taken for public use without just
compensation.
4 Pp. 6-7, Decision in GR 132922.
5 Finch, adopted by Blackstone in State v. Twin Village Water Co., 98 Me 214, 56
A 763 (1903), cited in Radio Communication of the Philippines, Inc. vs. National
Telecommunications Commission, 150 SCRA 450, 457, May 29, 1987. Also in Lim
vs. Pacquing, 240 SCRA 649, 678, January 27, 1995.
6 Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the
Philippines, p. 2, Vol. II, (1992); citing 3 Planiol & Ripert 59.
7 36 Am Jur 2d, 4 Franchises.
8 Ibid., 5.
9 Ibid., citing Los Angeles v. Los Angeles Gas & Electric Corp. 251 US 32, 64 L
ed. 121, 40 S Ct 76; United States v. Brooklyn Union Gas Co. (CA 2 NY) 168 F 2d
391; South California Gas Co. v. Los Angeles, 50 Cal 2d 713, 329 P 2d
289. Also in English Ave. Coach Corp. v. New York, 286 NY 84, 35 NE 2d 907.
10 See footnote no. 3.
11 36 Am Jur 2d, 8 Franchises, citing Grand Turk Western R. Co. v. South Bend,
227 US 544, 57 L ed. 633, 33 S Ct 303; Wilcox Consolidated Gas Co., 212 US 19,
53 L ed. 382, 29 S Ct 192; Wilmington & W.R. Co. v. Reid, 13 Wall (US) 264, 20 L
ed. 568; Arkansas State Highway Commission v. Arkansas Power & Light Co., 231
Ark 307, 330 SW 2d 77; and others.
12 11, Art. XII of the Constitution provides:
Sec. 11. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines or
to corporations or associations organized under the laws of the Philippines at least
sixty per centum of whose capital is owned by such citizens, nor shall such
franchise, certificate or authorization be exclusive in character or for a longer
period than fifty years. Neither shall any such franchise or right be granted except
under the condition that is shall be subject to amendment, alteration, or repeal by
the Congress when the common good so requires. The State shall encourage
equity participation in public utilities by the general public. The participation of
foreign investors in the governing body of any public utility enterprise shall be
limited to their proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be citizens of the
Philippines.
13 244 SCRA at p. 279.
67

14 Blo Urrquar Adiong v. Comelec, 207 SCRA 712, 719, March 31, 1992, per
Gutierrez, J., cited in Memorandum for Petitioners, p. 15.
15 Gonzales vs. Comelec, 27 SCRA 835, 871, April 18, 1969, per Fernando, J.
16 People vs. Nazario, 165 SCRA 186, 195, August 31, 1988, per Sarmiento, J.
17 See pp. 20-27 for the detailed computation.
18 Agbayani, Aguendo F., Commentaries and Jurisprudence on the Commercial
Laws of the Philippines, p. 560, 1993 ed.; citing Fisher vs. Yangco Steamship
Company, 31 Phil 1, (1915), referring to Chicago etc. R. Co. vs. Minnesota, 134
U.S. 418, Minneapolis Eastern R. Co. vs. Minnesota, 134 U.S. 467, Chicago etc. R.
Co. vs. Wellman, 143 U.S. 339, Smyth vs. Arnes, 169 U.S. 466, 524, Henderson
Bridge Co. vs. Henderson City, 173 U.S. 592, 614.
19 36 Am Jur 2d 732; citing Los Angeles v. Los Angeles Gas & E. Corp. 251 U.S.
32, 64 L ed 121, 40 S Ct 76; United States v. Brooklyn Union Gas Co. (CA2 NY)
168 F2d 391; Southern California Gas Co. v. Los Angeles, 50 Cal 2d 713, 329 P2d
289, cert den 359 US 907, 3 L ed 2d 572, 79 S Ct 583.
20 Apart from paying "supervision fees," broadcast media also pay normal taxes,
imposts, fees, assessments and other government charges.
21 36 Am Jur 2d pp. 724 and 727; citing Gordon v. Appeal Tax Ct. 3 How (US)
133, 11 L ed. 529; Bridgeport v. New York & N.H.R. Co., 36 Conn 255;
Consolidated Gas Co. v. Baltimore, 101 Md 541, 61 A 532.
22 In the case of ABS-CBN Broadcasting Corporation, the amount is much larger:
P3,196,912,000, per its Audited Consolidated Financial Report as of December 31,
1996, on file with the SEC.
23 At p. 20. See also Annex B of said Memorandum.
24 This is not to say that all broadcast networks are profitable. A comparative
study of their Financial Statements on file with the SEC shows that a majority are
not really profitable.
25 1, Art. III of the Constitution.
26 9, Art. III of the Constitution.
27 1, Art. III of the Constitution.
28 As personified in this case by the Comelec.



68

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 128096 January 20, 1999
PANFILO M. LACSON, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL
PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP,
IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES, respondent.
ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors.

MARTINEZ, J.:
The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further
defines the jurisdiction of the Sandiganbayan is being challenged in this petition for
prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo
Acop and Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with
the trial of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground
of lack of jurisdiction.
The antecedents of this case, as gathered from the parties' pleadings and documentary proofs,
are as follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be members of the
Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involved in a
spate of bank robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon
City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by
Chieff Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was
composed of police officers from the Traffic Management Command (TMC) led by petitioner-
intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission
Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson;
Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the
Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent
Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually
transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out
between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto
formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs,
Bienvenido Blancaflor, to investigate the incident. This panel later absolved from any criminal
liability all the PNP officers and personal allegedly involved in May 18, 1995 incident, with a
finding that the said incident was a legitimate police operation.
1

69

However, a review board led by Overall Deputy Ombudsman Francisco Villa modified the
Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-
six (26) respondents, including herein petitioner and intervenors. The recommendation was
approved by the Ombudsman except for the withdrawal of the charges against Chief Supt.
Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in
eleven (11) information for murder
2
before the Sandiganbayan's Second Division, while
intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same
informations as accessories after-in-the-fact.
Upon motion by all the accused in the 11 information,
3
the Sandiganbayan allowed them to file a
motion for reconsideration of the Ombudsman's action.
4

After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended
informations
5
before the Sandiganbayan, wherein petitioner was charged only as an accessory,
together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused
6
was dropped
from the case.
On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the
Sandiganbayan, asserting that under the amended informations, the cases fall within the
jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic
Act No. 7975.
7
They contend that the said law limited the jurisdiction of the Sandiganbayan to
cases where one or more of the "principal accused" are government officials with Salary Grade
(SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or
higher. The highest ranking principal accused in the amended informations has the rank of only
a Chief Inspector, and none has the equivalent of at least SG 27.
Thereafter, in a Resolution
8
dated May 8, 1996 (promulgated on May 9, 1996), penned by
Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and
Garchitorena dissenting,
9
the Sandiganbayan admitted the amended information and ordered
the cases transferred to the Quezon City Regional Trial Court which has original and exclusive
jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief
Superintendent or higher.
On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that
the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of
the accused.
While these motions for reconsideration were pending resolution, and even before the issue of
jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill
No. 2299
10
and No. 1094
11
(sponsored by Representatives Edcel C. Lagman and Lagman and
Neptali M. Gonzales II, respectively), as well as Senate Bill No. 844
12
(sponsored by Senator
Neptali Gonzales), were introduced in Congress, defining expanding the jurisdiction of the
Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the
Sandiganbayan by deleting the word "principal" from the phrase "principal accused" in Section 2
(paragraphs a and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No. 8249
13
by the President of
the Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution
14
denying the
motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution
dated May 8, 1996."
70

On the same day
15
the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution,
the pertinent portion of which reads:
After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it,
but before Justice de Leon. Jr. rendered his concurring and dissenting opinion,
the legislature enacted Republic Act 8249 and the President of the Philippines
approved it on February 5, 1997. Considering the pertinent provisions of the new
law, Justices Lagman and Demetriou are now in favor of granting, as they are now
granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has
already done so in his concurring and dissenting opinion.
xxx xxx xxx
Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M.
Lacson, and that trial has not yet begun in all these cases in fact, no order of
arrest has been issued this court has competence to take cognizance of these
cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the
court admitted the Amended Informations in these cases by the unanimous vote
of 4 with 1 neither concurring not dissenting, retained jurisdiction to try and
decide the cases
16
(Empahasis supplied)
Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7
thereof which provides that the said law "shall apply to all cases pending in any court over which
trial has not begun as to the approval hereof." Petitioner argues that:
a) The questioned provisions of the statute were introduced by the authors thereof
in bad faith as it was made to precisely suit the situation in which petitioner's
cases were in at the Sandiganbayan by restoring jurisdiction thereof to it, thereby
violating his right to procedural due process and the equal protection clause of the
Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine
(9) months the resolution of a pending incident involving the transfer of the cases
to the Regional Trial Court, the passage of the law may have been timed to
overtake such resolution to render the issue therein moot, and frustrate the
exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975)
b) Retroactive application of the law is plan from the fact that it was again made to
suit the peculiar circumstances in which petitioner's cases were under, namely,
that the trial had not yet commenced, as provided in Section 7, to make certain
that those cases will no longer be remanded to the Quezon City Regional Trial
Court, as the Sandiganbayan alone should try them, thus making it an ex post
facto legislation and a denial of the right of petitioner as an accused in Criminal
Case Nos. 23047-23057 to procedural due process.
c) The title of the law is misleading in that it contains the aforesaid "innocuous"
provisions in Sections 4 and 7 which actually expands rather than defines the old
Sandiganbayan law (RA 7975), thereby violating the one-title one-subject
requirement for the passage of statutes under Section 26 (1), Article VI of the
Constitution.
17

For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No.
8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the
introduction of Section 4 and 7 in said statute impressed upon it the character of a class
71

legislation and an ex-post facto statute intended to apply specifically to the accused in the
Kuratong Baleleng case pending before the Sandiganbayan.
18
They further argued that if their
case is tried before the Sandiganbayan their right to procedural due process would be violated as
they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired
under R.A. 7975, before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support
of the constitutionality of the challenged provisions of the law in question and praying that both
the petition and the petition-in-intervention be dismissed.
This Court then issued a Resolution
19
requiring the parties to file simultaneously within a
nonextendible period of ten (10) days from notice thereof additional memoranda on the question
of whether the subject amended informations filed a Criminal Case Nos. 23047-23057
sufficiently allege the commission by the accused therein of the crime charged within the
meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive
original jurisdiction of the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of the Philippines,
filed the required supplemental memorandum within the nonextendible reglementary period.
The established rule is that every law has in its favor the presumption of constitutionality, and to
justify its nullification there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative one.
20
The burden of proving the invalidity of the law lies with those
who challenge it. That burden, we regret to say, was not convincingly discharged in the present
case.
The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973
Constitution, which provides:
Sec. 5. The Batasang Pambansa shall create a special court, to be known as
Sandiganbayan, which shall have jurisdiction over criminal and civil cases
involving graft and corrupt practices and such other offenses committed by public
officers and employees including those in government-owned or controlled
corporations, in relation to their office as may be determined by law.
The said special court is retained in the new (1987) Constitution under the following provisions
in Article XI, Section 4:
Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue
to function and exercise its jurisdiction as now or hereafter may be provided by
law.
Pursuant to the constitutional mandate, Presidential Decree No. 1486
21
created the
Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order,
were enacted: P.D. No. 1606,
22
Section 20 of Batas Pambansa Blg. 123,
23
P.D. No. 1860,
24
P.D.
No. 1861,
25
R.A. No. 7975,
26
and R.A. No. 8249.
27
Under the latest amendments introduced by
Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases:
Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further
amended to read as follows:
Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
72

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Titile VII, Book II of the Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade "27" and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors,
engineers, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city
department heads;
(c) Officials of the diplomatic service occupying the position of
consul and higher;
(d) Philippine Army and air force colonels, naval captains, and all
officers of higher rank;
(e) Officers of the Philippines National Police while occupying the
position of provincial director and those holding the rank of senior
superintendent or higher.
(f) City of provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees or managers of government-
owned or controlled corporations, state universities or educational
institutions or foundations;
(2) Members of Congress or officials thereof classified as-Grade "27" and up under
the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice
to the provisions of the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under
the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in Subsection a of this
section in relation to their office.
73

c. Civil and criminal cases filed pursuant to and connection with Executive Orders
Nos. 1,2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to
salary Grade "27" or higher, as prescribed in the said Republic Act 6758, or
military and PNP officers mentioned above, exclusive original jurisdiction thereof
shall be vested in the proper regional trial court, metropolitan trial court,
municipal trial court, and municipal circuit trial court, as the case may be,
pursuant to their jurisdictions as privided in Batas Pambansa Blg. 129, as
amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders of regional trial courts whether in the exercise of
their own original jurisdiction or of their appellate jurisdiction as herein provided.
The Sandiganbayan shall have exclusive original jurisdiction over petitions of the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including quo warranto, arising or
that may arise in cases filed or which may be filed under Executive Order Nos. 1,
2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme Court.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules that the Supreme Court has promulgated and may hereafter
promulgate, relative to appeals/petitions for review to the Court of Appeals, shall
apply to appeals and petitions for review filed with the Sandiganbayan. In all cases
elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme
Court, the Office of the Ombudsman, through its special prosecutor, shall
represent the People of the Philippines, except in cases filed pursuant to Executive
Order Nos. 1, 2, 14, and 4-A, issued in 1986.
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employee, including those employed in
government-owned or controlled corporations, they shall be tried jointly with said
public officers and employees in the proper courts which shall exercise exclusive
jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 8249 states:
Sec. 7. Transitory provision This act shall apply to all cases pending in any
court over which trial has not begun as of the approval hereof. (Emphasis
supplied)
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides:
Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is
hereby further amended to read as follows:
Sec 4. Jurisdiction The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
74

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the principal
accused are officials occupying the following positions in the government, whether
in a permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade "27" and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors,
engineer, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city
department heads;
(c) Officials of the diplomatic service occupying the position of
consul and higher;
(d) Philippine Army and air force colonels, naval captains, and all
officers of higher rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees, or managers of government-
owned or controlled corporations, state universities or educational
institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade "27" and up under
the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice
to the provisions of the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under
the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and employees
mentioned in Subsection a of this section in relation to their office.
c. Civil and criminal cases files pursuant to and in connection with Executive
Order Nos. 1, 2, 14, and 4-A.
75

In cases where none of the principal accused are occupying positions
corresponding to salary Grade "27" or higher, as prescribed in the said Republic
Act 6758, or PNP officers occupying the rank of superintendent or higher, or their
equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial
court, metropolitan trial court, municipal trial court, and municipal circuit trial
court, as the case may be, pursuant to their respective jurisdictions as provided in
Batas Pambansa Blg. 129.
The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from
the final judgment, resolutions or orders of regular court where all the accused are
occupying positions lower than grade "27," or not otherwise covered by the
preceding enumeration.
xxx xxx xxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed in
government-owned or controlled corporations, they shall be tried jointly with said
public officers and employees in the proper courts which shall have exclusive
jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 7975 reads:
Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not
begun in the Sandiganbayan shall be referred to the proper courts.
Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused"
appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due
to this deletion of the word "principal" that the parties herein are at loggerheads over the
jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that
the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases
since none of the principal accused under the amended information has the rank of
Superintendent
28
or higher. On the other hand, the Office of the Ombudsman, through the
Special Prosecutor who is tasked to represent the People before the Supreme Court except in
certain cases,
29
contends that the Sandiganbayan has jurisdiction pursuant to R.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive
original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense
committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act),
(b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code (the law on bribery),
30
(d) Executive Order Nos. 1, 2, 14, and 14-A, issued in
1986 (sequestration cases),
31
or (e) other offenses or felonies whether simple or complexed with
other crimes; (2) the offender committing the offenses in items (a), (b), (c) and (e) is a public
official or employee
32
holding any of the positions enumerated in paragraph a of Section 4; and
(3) the offense committed is in relation to the office.
Considering that herein petitioner and intervenors are being charged with murder which is a
felony punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional
offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to
"other offenses or felonies whether simple or complexed with other crimes committed by the
public officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to
their office. "The phrase" other offenses or felonies" is too broad as to include the crime of
murder, provided it was committed in relation to the accused's officials functions. Thus, under
76

said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or
rank of the offender that is, whether he is one of those public officers or employees
enumerated in paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the
same Section 4 do not make any reference to the criminal participation of the accused public
officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A.
8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention
the criminal participation of the public officer as a requisite to determine the jurisdiction of the
Sandiganbayan.
Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal
protection of the law
33
because its enactment was particularly directed only to the Kuratong
Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete
evidence and convincing argument were presented to warrant a declaration of an act of the entire
Congress and signed into law by the highest officer of the co-equal executive department as
unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who
challenges the law must present proof of arbitrariness.
34

It is an established precept in constitutional law that the guaranty of the equal protection of the
laws is not violated by a legislation based on reasonable classification. The classification is
reasonable and not arbitrary when there is concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
(4) must apply equally to all members of the same class,
35

all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of
constitutionality and reasonable of the questioned provisions. The classification between those
pending cases involving the concerned public officials whose trial has not yet commence and
whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction
under R.A. 8249, as against those cases where trial had already started as of the approval of the
law, rests on substantial distinction that makes real differences.
36
In the first instance, evidence
against them were not yet presented, whereas in the latter the parties had already submitted
their respective proofs, examined witnesses and presented documents. Since it is within the
power of Congress to define the jurisdiction of courts subject to the constitutional
limitations,
37
it can be reasonably anticipated that an alteration of that jurisdiction would
necessarily affect pending cases, which is why it has to privide for a remedy in the form of a
transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7
placed them under a different category from those similarly situated as them. Precisely,
paragraph a of Section 4 provides that it shall apply to "all case involving" certain public officials
and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary to
petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong
Baleleng cases. The transitory provision does not only cover cases which are in the
Sandiganbayan but also in "any court." It just happened that Kuratong Baleleng cases are one of
those affected by the law. Moreover, those cases where trial had already begun are not affected
by the transitory provision under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is premised on what is
perceived as bad faith on the part of a Senator and two Justices of the Sandiganbaya
38
for their
participation in the passage of the said provisions. In particular, it is stressed that the Senator
77

had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases
during the hearings conducted on the matter by the committee headed by the Senator. Petitioner
further contends that the legislature is biased against him as he claims to have been selected
from among the 67 million other Filipinos as the object of the deletion of the word "principal" in
paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A.
8249.
39
R.A 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and
by about 250 Representatives, and was separately approved by the Senate and House of
Representatives and, finally, by the President of the Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during
the committee hearings, the same would not constitute sufficient justification to nullify an
otherwise valid law. Their presence and participation in the legislative hearings was deemed
necessary by Congress since the matter before the committee involves the graft court of which
one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its
plenary legislative powers, is particularly empowered by the Constitution to invite persons to
appear before it whenever it decides to conduct inquiries in aid of legislation.
40

Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to
the Kuratong Baleleng cases constitutes an ex post facto law
41
for they are deprived of their right
to procedural due process as they can no longer avail of the two-tiered appeal which they had
allegedly acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v.
Bull,
42
an ex post facto law is one
(a) which makes an act done criminal before the passing of the law
and which was innocent when committed, and punishes such
action; or
(b) which aggravates a crime or makes it greater than when it was
committed; or
(c) which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was
committed.
(d) which alters the legal rules of evidence and recieves less or
different testimony that the law required at the time of the
commission of the offense on order to convict the defendant.
43

(e) Every law which, in relation to the offense or its consequences,
alters the situation of a person to his disadvantage.
44

This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies only but
in effect imposes a penalty or deprivation of a right which when
done was lawful;
(g) deprives a person accused of crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of a amnesty.
45

78

Ex post facto law, generally, prohibits retrospectively of penal laws.
46
R.A. 8249 is not penal law.
It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts
of the Legislature which prohibit certain acts and establish penalties for their violations;
47
or
those that define crimes, treat of their nature, and provide door their punishment.
48
R.A 7975,
which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and
other procedural matters, has been declared by the Court as not a penal law, but clearly a
procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of
all kinds can properly administer justice.
49
Not being a penal law, the retroactive application of
R.A. 8249 cannot be challenged as unconstitutional.
Petitioner's and entervenors' contention that their right to a two-tiered appeal which they
acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The
same contention has already been rejected by the court several times
50
considering that the right
to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of
procedure provided for in the statutory right of appeal is not included in the prohibition
against ex post facto laws.
51
R.A. 8249 pertains only to matters of procedure, and being merely
an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out
a penalty and, therefore, does not come within the prohibition.
52
Moreover, the law did not alter
the rules of evidence or the mode of trial.
53
It has been ruled that adjective statutes may be
made applicable to actions pending and unresolved at the time of their passage.
54

In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to
review questions of law.
55
On the removal of the intermediate review of facts, the Supreme Court
still has the power of review to determine if he presumption of innocence has been convincing
overcome.
56

Another point. The challenged law does not violate the one-title-one-subject provision of the
Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the
Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The
expantion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not
have to be expressly stated in the title of the law because such is the necessary consequence of
the amendments. The requirement that every bill must only have one subject expressed in the
title
57
is satisfied if the title is comprehensive enough, as in this case, to include subjects related
to the general purpose which the statute seeks to achieve.
58
Such rule is liberally interpreted
and should be given a practical rather than a technical construction. There is here sufficient
compliance with such requirement, since the title of R.A. 8249 expresses the general subject
(involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended)
and all the provisions of the law are germane to that general subject.
59
The Congress, in
employing the word "define" in the title of the law, acted within its power since Section 2, Article
VIII of the Constitution itself empowers the legislative body to "define, prescribe, and apportion
the jurisdiction of various courts.
60

There being no unconstitutional infirmity in both the subject amendatory provision of Section 4
and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249,
we shall now determine whether under the allegations in the Informations, it is the
Sandiganbayan or Regional Trial Court which has jurisdictions over the multiple murder case
against herein petitioner and entervenors.
The jurisdiction of a court is defined by the Constitution or statute. The elements of that
definition must appear in the complaint or information so as to ascertain which court has
jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined
by the allegations in the complaint or informations,
61
and not by the evidence presented by the
parties at the trial.
62

79

As stated earlier, the multiple murder charge against petitioner and intervenors falls under
Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be
committed by the offender in relation to his office in order for the Sandiganbayan to have
jurisdiction over it.
63
This jurisdictional requirement is in accordance with Section 5, Article XIII
of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over
criminal cases committed by the public officers and employees, including those in goverment-
owned or controlled corporations, "in relation to their office as may be determined by law." This
constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section
4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now
or hereafter may be provided by law.
The remaining question to be resolved then is whether the offense of multiple murder was
committed in relation to the office of the accussed PNP officers.
In People vs. Montejo,
64
we held that an offense is said to have been committed in relation to the
office if it (the offense) is "intimately connected" with the office of the offender and perpetrated
while he was in the performance of his official functions.
65
This intimate relation between the
offense charged and the discharge of official duties "must be alleged in the informations."
66

As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised
Rules of Court mandates:
Sec. 9 Couse of accusation The acts or omissions complied of as constituting
the offense must be stated in ordinary and concise language without repetition not
necessarily in the terms of the statute defining the offense, but in such from as is
sufficient to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper judgment.
(Emphasis supplied)
As early as 1954 we pronounced that "the factor that characterizes the charge is the actual
recital of the facts."
67
The real nature of the criminal charge is determined not from the caption
or preamble of the informations nor from the specification of the provision of law alleged to have
been violated, they being conclusions of law, but by the actual recital of facts in the complaint or
information.
68

The noble object or written accusations cannot be overemphasized. This was explained in U.S. v.
Karelsen: 69
The object of this written accusations was First; To furnish the accused with
such a descretion of the charge against him as will enable him to make his
defense and second to avail himself of his conviction or acquittal for protection
against a further prosecution for the same cause and third, to inform the court of
the facts alleged so that it may decide whether they are sufficient in law to support
a conviction if one should be had. In order that the requirement may be
satisfied, facts must be stated, not conclusions of law. Every crime is made up of
certain acts and intent these must be set forth in the complaint with reasonable
particularly of time, place, names (plaintiff and defendant) and circumstances. In
short, the complaint must contain a specific allegation of every
fact andcircumstance necessary to constitute the crime charged. (Emphasis
supplied)
It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he
is presumed to have no indefendent knowledge of the facts that constitute the offense."
70

80

Applying these legal principles and doctrines to the present case, we find the amended
informations for murder against herein petitioner and intervenors wanting of specific factual
averments to show the intimate relation/connection between the offense charged and the
discharge of official function of the offenders.
In the present case, one of the eleven (11) amended informations
71
for murder reads:
AMENDED INFORMATIONS
The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby
accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T.
VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G.
DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2
VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C.
CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF
SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT.
PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT. ALMARIO
A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES,
SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP.
CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, SPO2
NORBERTO LASAGA, PO2 LEONARDO GLORIA, and PO2 ALEJANDRO G.
LIWANAG of the crime of Murder as defined and penalize under Article 248 of the
Revised Penal Code committed as follows
That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City
Philippines and within the jurisdiction of his Honorable Court, the accused CHIEF
INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR
INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE
ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2
ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O.
AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage of their public
and official positions as officers and members of the Philippine National Police and
committing the acts herein alleged in relation to their public office, conspiring with
intent to kill and using firearms with treachery evident premeditation and taking
advantage of their superior strenghts did then and there willfully unlawfully and
feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds
which caused his instantaneous death to the damage and prejudice of the heirs of
the said victim.
That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP,
CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR.,
SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP.
GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO
ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S.
BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in relation to
office as officers and members of the Philippine National Police are charged herein
as accessories after-the-fact for concealing the crime herein above alleged by
among others falsely representing that there where no arrest made during
the read conducted by the accused herein at Superville Subdivision, Paranaque,
Metro Manila on or about the early dawn of May 18, 1995.
CONTRARY LAW.
While the above-quoted information states that the above-named principal accused committed
the crime of murder "in relation to their public office, there is, however, no specific allegation of
81

facts that the shooting of the victim by the said principal accused was intimately related to the
discharge of their official duties as police officers. Likewise, the amended information does not
indicate that the said accused arrested and investigated the victim and then killed the latter
while in their custody.
Even the allegations concerning the criminal participation of herein petitioner and intevenors as
among the accessories after-the-facts, the amended information is vague on this. It is alleged
therein that the said accessories concelead "the crime herein-above alleged by, among others,
falsely representing that there were no arrests made during the raid conducted by the accused
herein at Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18,
1995." The sudden mention of the "arrests made during the raid conducted by the accused"
surprises the reader. There is no indication in the amended information that the victim was one
of those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly
conducted "at Superville Subdivision, Paranaque, Metro Manila" but, as alleged in the
immediately preceding paragraph of the amended information, the shooting of the victim by the
principal accused occurred in Mariano Marcos Avenue, Quezon City." How the raid, arrests and
shooting happened in the two places far away from each other is puzzling. Again, while there is
the allegation in the amended information that the said accessories committed the offense "in
relation to office as officers and members of the (PNP)," we, however, do not see the intimate
connection between the offense charged and the accused's official functions, which, as earlier
discussed, is an essential element in determining the jurisdiction of the Sandiganbayan.
The stringent requirement that the charge be set forth with such particularly as will reasonably
indicate the exact offense which the accused is alleged to have committed in relation to his office
was, sad to say, not satisfied. We believe that the mere allegation in the amended information
that the offense was committed by the accused public officer in relation to his office is not
sufficient. That phrase is merely a conclusion between of law, not a factual avernment that
would show the close intimacy between the offense charged and the discharge of the accused's
official duties.
In People vs. Magallanes,
72
where the jurisdiction between the Regional Trial Court and the
Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is determined by the allegations in the
complaint or information and not by the result of evidence after trial.
In (People vs) Montejo (108 Phil 613 (1960), where the amended information
alleged
Leroy S. Brown City Mayor of Basilan City, as such, has organized
groups of police patrol and civilian commandoes consisting of
regular policeman and . . . special policemen appointed and
provided by him with pistols and higher power guns and then
established a camp . . . at Tipo-tipo which is under his command . .
. supervision and control where his co-defendants were stationed
entertained criminal complaints and conducted the corresponding
investigations as well as assumed the authority to arrest and detain
person without due process of law and without bringing them to the
proper court, and that in line with this set-up established by said
Mayor of Basilan City as such, and acting upon his orders his co-
defendants arrested and maltreated Awalin Tebag who denied in
consequence thereof.
we held that the offense charged was committed in relation to the office of the
accused because it was perpetrated while they were in the performance, though
82

improper or irregular of their official functions and would not have been
committed had they not held their office, besides, the accused had no personal
motive in committing the crime thus, there was an intimate connection between
the offense and the office of the accused.
Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in
the court below do not indicate that the accused arrested and investigated the
victims and then killed the latter in the course of the investigation. The
informations merely allege that the accused for the purpose of extracting or
extortin the sum of P353,000.00 abducted, kidnapped and detained the two
victims, and failing in their common purpose they shot; and killed the said
victims. For the purpose of determining jurisdiction, it is these allegations that shall
control, and not the evidence presented by the prosecution at the trial.
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation
to public office "does not appear in the information, which only signifies that the said phrase is
not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific
factual allegations in the information that would indicate the close intimacy between the
discharge of the accused's official duties and the commission of the offense charged, in order to
qualify the crime as having been committed in relation to public office.
Consequently, for failure to show in the amended informations that the charge of murder was
intimately connected with the discharge of official functions of the accused PNP officers, the
offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive
original jurisdiction of the Regional Trial Court,
73
not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The
Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The
Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple
murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over
the said cases.1wphi1.nt
SO ORDERED.
Davide, Jr., CJ., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.
Footnotes
1 Rollo, p. 43.
2 Docketed as Criminal Cases Nos. 23047 to 23057, Annex "B", Petition; Rollo, pp.
32-34, 44.
3 Then motion states that they have been deprived of their right to file respective
motion for reconsideration of the Ombudsman's final resolution.
4 Annex "C," Petition Sandiganbayan Order dated November 27, 1995, Rollo,
pp. 37-38.
5 Annex "D," Petition, Rollo, pp. 39-41.
6 Inspector Alvarez.
83

7 Entitled "An Act To Strengthen The Functional And Structural Organization Of
The Sandiganbayan. Amending For That Purpose Presidential Decree 1606, As
Amended.
8 Annex "E," Petition, Rollo, p. 42.
9 Presiding Justice Garchitorena and Justice De Leon were designated as special
members of the Division pursuant to SB Administrative Order No. 121-96 dated
March 26, 1996.
10 Annex "F," Petition, Rollo, pp. 113-123.
11 Annex "F-1," Petition, Rollo, pp. 124-134.
12 Annex "G," Petition, Rollo, pp. 135-145.
13 Annex "A," Petition, Rollo, pp. 28-31. The law is entitled, "AN ACT FURTHER
DEFINING THE JURISDICTION OF THE SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED, PROVIDING
FUNDS THEREFOR, AND FOR OTHER PURPOSES." It took effect on February 25,
1997.
14 Rollo, pp. 162-171.
15 March 5, 1997.
16 Rollo, pp. 214, 216-219.
17 Petition, pp. 8-9, Rollo, pp. 10-11.
18 Petition-In-intervention, p. 9; Rollo, p. 236.
19 Dated December 15, 1998.
20 Justice Ricardo J. Francisco in Padilla v. Court of Appeals and People, 269
SCRA 402, citingPeralta v. COMELEC, 82 SCRA 30.
21 Took effect on June 11, 1978; See Republic v. Asuncion, 231 SCRA 229 [1994].
22 Took effect on December 10, 1978; Republic v. Asuncion, ibid.
23 Sec. 20 Jurisdiction in ciminal cases. Regional Trial Courts shall exercise
original jurisdiction in all criminal cases not within the exclusive jurisdiction of
any court, tribunal or body, except those now falling under the exclusive and
corcurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively
taken cognizance of by the latter. (See also Natividad vs. Felix, 229 SCRA 685-68
[1994]. )
24 Took effect on January 14, 1983; Republic v. Asuncion, ibid.
25 Took effect on March 23, 1983; Republic v. Asuncion, ibid.
84

26 Approved on March 30, 1995 and took effect on May 16, 1995; People v.
Magallanes, 249 SCRA 224 (1995); Azarcon vs. Sandiganbayan, 268 SCRA 757
[1997].
27 Approved on February 5, 1995.
28 This is the rank stated in paragraph c (second par.). Section 2 of R.A. 7975,
while in paragraph a (1) (e) of said Section 2, the rank is "chief superintendent" or
higher.
29 Sec. 4 P.D. 1606, as amended by R.A. 7975 and 8249.
30 Items (a), (b), and (c) are taken from paragraph a, Section 4 of R.A. 8249.
31 Paragraphs c, Section 4, R.A. 8249.
32 The Sandiganbayan has jurisdiction over a private individual when the
complaint charges him either as a co-principal, accomplice or accessory of a
public officer or employee who has been charged with a crime within its
jurisdiction.
33 No person shall be deprived of life, liberty and property without due process of
law nor shall any person be denied the equal protection of the laws (Section 1,
Article III, 1987 Constitution).
34 Sison, Jr. v. Ancheta, 130 SCRA 164.
35 Association of Small Landowners in the Philippines v. Secretary of Agrarian
Reform, 175 SCRA 343; People v. Cayat, 68 Phil. 12 (1939); People v. Vera, 65
Phil. 56; Philippines Judges Association v. Prado, 227 SCRA 703; Philippine
Association of Service Exporters v. Drilon, 163 SCRA 386 (1988).
36 Sison Jr. v. Ancheta, 130 SCRA 164.
37 See Fabian v. Aniano A. Desierto, as Ombudsman, G.R. No. 129742, Sept. 16,
1998.
38 Senator Raul and Sandiganbayan Presiding Justice Francis Garchitorena and
Justice Jose Balajadia.
39 Petition, p. 17.
40 Sec. 21, Article VI, 1987 Constitution provides: "The Senate or the House of
Representative or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected."
41 "No ex post facto law or bill of attainder shall be enacted" (Section 22, Article
VI, 1987 Constitution).
42 Penned by Chief Justice Chase (3 Dall, 386, 390.); Black, Constitutional law,
595, cited in Cruz Constitution Law, 1995 ed. p. 247.
85

43 Mekin v. Wolfe, 2 Phil. 74 (1903) and U.S. v. Diaz Conde, 42 Phil. 766, 770,
cited in Bernas, Constitutional Rights and Social Demands, Part II, 1991 ed., p.
513.
44 This kind of ex post facto law appeared in Wilensky v. Fields, Fla., 267 So. 2d
1, 5 (Black's Law Dictionary, 5th ed., p. 520) cited in People v. Sandiganbayan,
211 SCRA 241.
45 En banc cases of In Re Kay Villegas Kami, 35 SCRA 429 (1970); Mejia v.
Pamaran, 160 SCRA 457; Tan v. Barrios, 190 SCRA 686; People v.
Sandiganbayan, 211 SCRA 241.
46 Wright v. CA, 235 SCRA 341; Jucrez v. CA, 214 SCRA 475; Pascual v. Board of
Medical Examiners, 28 SCRA 344; See also Katigbak v. Solicitor General, 180
SCRA 540 citing Cabal v. Kapunan, Jr. 6 SCRA 1059; Republic v. Agoncillo, 40
SCRA 579, and dela Cruz v. Better Living, Inc., 78 SCRA 274.
47 Lorenzo v. Posadas, 64 Phil. 353, 367 (1937).
48 Hernandez v. Albano, 19 SCRA 95, 102.
49 Subido, Jr. v. Sandiganbayan, 334 Phil. 346.
50 Rodriguez v. Sandiganbayan, 205 Phil. 567; Alviar v. Sandiganbayan, 137
SCRA 63; Nuez v. Sandiganbayan, 111 SCRA 433; De Guzman v. People,
December 15, 1982.
51 Nuez v. Sandiganbayan, supra.
52 People v. Nazario, 165 SCRA 186.
53 Virata v. Sandiganbayan, 202 SCRA 680.
54 Oas v. Sandiganbayan, 178 SCRA 261.
55 Thompson v. Utah, 170 U.S. 343 cited in Nuez v. Sandiganbayan, supra.
56 Rodriguez v. Sandiganbayan, 205 Phil. 567; Alviar v. Sandiganbayan, 137
SCRA 63.
57 Sec. 26 (1), Article VI, 1987 Constitution reads "Every bill passed by the
Congress shall embrace only one subject which shall be expressed in the title
thereof.
58 Tio v. Videogram Regulatory Board, 151 SCRA 208.
59 Sumulong v. COMELEC, 73 Phil. 228-291.
60 Sec. 2 Art. VI, 1987 Constitution provides: "The Congress shall have the power
to define, prescribe, and apportion the jurisdiction of the various courts but may
not deprive the Supreme Court of its jurisdiction over cases enumerated in Section
5 hereof.
86

61 People v. Magallanes, 249 SCRA 212, 222 [1995], citing Republic vs. Asuncion,
231 SCRA 211 (1994).
62 People vs. Magallanes, ibid., citing U.S. vs. Mallari, 24 Phil. 366 [1913]; People
vs. Co Hiok, 62 Phil. 501 [1995]; People vs. Ocaya, 83 SCRA 218 [1978].
63 Republic vs. Asuncion; supra. pp. 232-233; People vs. Magallanes, supra, p.
220.
64 108 Phil. 613 (1960).
65 See also Republic vs. Asuncion, 231 SCRA 233 [1994] and People vs.
Magallanes, 249 SCRA 221, [1995].
66 See Republic vs. Asuncion supra, and People vs. Magallanes, supra.
67 People vs. Cosare, 95 Phil. 657, 660 (1994).
68 People vs. Mendoza, 175 SCRA 743.
69 3 Phil. 223, 226 [1904]. See also Matilde v. Jobson, 68 SCRA 456, [December
29, 1975]; People v. Labado, 98 SCRA 730, 747 [July 24, 1980], cited in Bernas.
The Constitution of the Philippines A Commentary, Vol. I, 1987 Editiion, p.
386.
70 Francisco, The Revised Rules of Court, Criminal Procedure, p. 77 cited in
Balitaan vs. Court of First Instance of Batangas, 115 SCRA 739 [1982].
71 The eleven (11) amended informations were couched uniformly except for the
names of the victims.
72 249 SCRA 212, 222, 223 [1995].
73 Sec. 20 of B.P. Blg. 129 provides "Regional Trial Courts shall exercise exclusive
original jurisdiction in all criminal cases not within the exclusive jurisdiction of
any court, tribunal, or body, except those now falling under the exclusive and
concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively
taken cognizance of by the latter" See also People v. Magallanes, 249 SCRA 223
[1995].






87

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 128845 June 1, 2000
INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner,
vs.
HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor and
Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary of
Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of
International School-Manila; and INTERNATIONAL SCHOOL, INC., respondents.
KAPUNAN, J.:
Receiving salaries less than their counterparts hired abroad, the local-hires of private respondent
School, mostly Filipinos, cry discrimination. We agree. That the local-hires are paid more than
their colleagues in other schools is, of course, beside the point. The point is that employees
should be given equal pay for work of equal value. That is a principle long honored in this
jurisdiction. That is a principle that rests on fundamental notions of justice. That is the principle
we uphold today.1wphi1.nt
Private respondent International School, Inc. (the School, for short), pursuant to Presidential
Decree 732, is a domestic educational institution established primarily for dependents of foreign
diplomatic personnel and other temporary residents.
1
To enable the School to continue carrying
out its educational program and improve its standard of instruction, Section 2(c) of the same
decree authorizes the School to employ its own teaching and management personnel selected by
it either locally or abroad, from Philippine or other nationalities, such personnel being exempt
from otherwise applicable laws and regulations attending their employment, except laws that
have been or will be enacted for the protection of employees.
Accordingly, the School hires both foreign and local teachers as members of its faculty,
classifying the same into two: (1) foreign-hires and (2) local-hires. The School employs four tests
to determine whether a faculty member should be classified as a foreign-hire or a local hire:
a. What is one's domicile?
b. Where is one's home economy?
c. To which country does one owe economic allegiance?
d. Was the individual hired abroad specifically to work in the School and was the School
responsible for bringing that individual to the Philippines?
2

Should the answer to any of these queries point to the Philippines, the faculty member is
classified as a local hire; otherwise, he or she is deemed a foreign-hire.
The School grants foreign-hires certain benefits not accorded local-hires.1avvphi1 These include
housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires
are also paid a salary rate twenty-five percent (25%) more than local-hires. The School justifies
the difference on two "significant economic disadvantages" foreign-hires have to endure, namely:
(a) the "dislocation factor" and (b) limited tenure. The School explains:
88

A foreign-hire would necessarily have to uproot himself from his home country, leave his
family and friends, and take the risk of deviating from a promising career path all for
the purpose of pursuing his profession as an educator, but this time in a foreign land.
The new foreign hire is faced with economic realities: decent abode for oneself and/or for
one's family, effective means of transportation, allowance for the education of one's
children, adequate insurance against illness and death, and of course the primary benefit
of a basic salary/retirement compensation.
Because of a limited tenure, the foreign hire is confronted again with the same economic
reality after his term: that he will eventually and inevitably return to his home country
where he will have to confront the uncertainty of obtaining suitable employment after
along period in a foreign land.
The compensation scheme is simply the School's adaptive measure to remain competitive
on an international level in terms of attracting competent professionals in the field of
international education.
3

When negotiations for a new collective bargaining agreement were held on June 1995, petitioner
International School Alliance of Educators, "a legitimate labor union and the collective bargaining
representative of all faculty members"
4
of the School, contested the difference in salary rates
between foreign and local-hires. This issue, as well as the question of whether foreign-hires
should be included in the appropriate bargaining unit, eventually caused a deadlock between the
parties.
On September 7, 1995, petitioner filed a notice of strike. The failure of the National Conciliation
and Mediation Board to bring the parties to a compromise prompted the Department of Labor
and Employment (DOLE) to assume jurisdiction over the dispute. On June 10, 1996, the DOLE
Acting Secretary, Crescenciano B. Trajano, issued an Order resolving the parity and
representation issues in favor of the School. Then DOLE Secretary Leonardo A. Quisumbing
subsequently denied petitioner's motion for reconsideration in an Order dated March 19, 1997.
Petitioner now seeks relief in this Court.
Petitioner claims that the point-of-hire classification employed by the School is discriminatory to
Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination.
The School disputes these claims and gives a breakdown of its faculty members, numbering 38
in all, with nationalities other than Filipino, who have been hired locally and classified as local
hires.
5
The Acting Secretary of Labor found that these non-Filipino local-hires received the same
benefits as the Filipino local-hires.
The compensation package given to local-hires has been shown to apply to all, regardless
of race. Truth to tell, there are foreigners who have been hired locally and who are paid
equally as Filipino local hires.
6

The Acting secretary upheld the point-of-hire classification for the distinction in salary rates:
The Principle "equal pay for equal work" does not find applications in the present case.
The international character of the School requires the hiring of foreign personnel to deal
with different nationalities and different cultures, among the student population.
We also take cognizance of the existence of a system of salaries and benefits accorded to
foreign hired personnel which system is universally recognized. We agree that certain
amenities have to be provided to these people in order to entice them to render their
services in the Philippines and in the process remain competitive in the international
market.
89

Furthermore, we took note of the fact that foreign hires have limited contract of
employment unlike the local hires who enjoy security of tenure. To apply parity therefore,
in wages and other benefits would also require parity in other terms and conditions of
employment which include the employment which include the employment contract.
A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for
salary and professional compensation wherein the parties agree as follows:
All members of the bargaining unit shall be compensated only in accordance with
Appendix C hereof provided that the Superintendent of the School has the
discretion to recruit and hire expatriate teachers from abroad, under terms and
conditions that are consistent with accepted international practice.
Appendix C of said CBA further provides:
The new salary schedule is deemed at equity with the Overseas Recruited Staff
(OSRS) salary schedule. The 25% differential is reflective of the agreed value of
system displacement and contracted status of the OSRS as differentiated from the
tenured status of Locally Recruited Staff (LRS).
To our mind, these provisions demonstrate the parties' recognition of the difference in the
status of two types of employees, hence, the difference in their salaries.
The Union cannot also invoke the equal protection clause to justify its claim of parity. It is
an established principle of constitutional law that the guarantee of equal protection of the
laws is not violated by legislation or private covenants based on reasonable classification.
A classification is reasonable if it is based on substantial distinctions and apply to all
members of the same class. Verily, there is a substantial distinction between foreign hires
and local hires, the former enjoying only a limited tenure, having no amenities of their
own in the Philippines and have to be given a good compensation package in order to
attract them to join the teaching faculty of the School.
7

We cannot agree.
That public policy abhors inequality and discrimination is beyond contention. Our Constitution
and laws reflect the policy against these evils. The Constitution
8
in the Article on Social Justice
and Human Rights exhorts Congress to "give highest priority to the enactment of measures that
protect and enhance the right of all people to human dignity, reduce social, economic, and
political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the
exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his
due, and observe honesty and good faith.
International law, which springs from general principles of law,
9
likewise proscribes
discrimination. General principles of law include principles of equity,
10
i.e., the general
principles of fairness and justice, based on the test of what is reasonable.
11
The Universal
Declaration of Human Rights,
12
the International Covenant on Economic, Social, and Cultural
Rights,
13
the International Convention on the Elimination of All Forms of Racial
Discrimination,
14
the Convention against Discrimination in Education,
15
the Convention (No.
111) Concerning Discrimination in Respect of Employment and Occupation
16
all embody the
general principle against discrimination, the very antithesis of fairness and justice. The
Philippines, through its Constitution, has incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of
capital, inequality and discrimination by the employer are all the more reprehensible.
90

The Constitution
17
specifically provides that labor is entitled to "humane conditions of work."
These conditions are not restricted to the physical workplace the factory, the office or the field
but include as well the manner by which employers treat their employees.
The Constitution
18
also directs the State to promote "equality of employment opportunities for
all." Similarly, the Labor Code
19
provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both the spirit and letter of these
provisions if the State, in spite of its primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of
employment.
20

Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135,
for example, prohibits and penalizes
21
the payment of lesser compensation to a female employee
as against a male employee for work of equal value. Article 248 declares it an unfair labor
practice for an employer to discriminate in regard to wages in order to encourage or discourage
membership in any labor organization.
Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7
thereof, provides:
The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of just and favourable conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions
of work not inferior to those enjoyed by men, with equal pay for equal
work;
x x x x x x x x x
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal
truism of "equal pay for equal work." Persons who work with substantially equal qualifications,
skill, effort and responsibility, under similar conditions, should be paid similar salaries.
22
This
rule applies to the School, its "international character" notwithstanding.
The School contends that petitioner has not adduced evidence that local-hires perform work
equal to that of foreign-hires.
23
The Court finds this argument a little cavalier. If an employer
accords employees the same position and rank, the presumption is that these employees perform
equal work. This presumption is borne by logic and human experience. If the employer pays one
employee less than the rest, it is not for that employee to explain why he receives less or why the
others receive more. That would be adding insult to injury. The employer has discriminated
against that employee; it is for the employer to explain why the employee is treated unfairly.
The employer in this case has failed to discharge this burden. There is no evidence here that
foreign-hires perform 25% more efficiently or effectively than the local-hires. Both groups have
similar functions and responsibilities, which they perform under similar working conditions.
The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the
distinction in salary rates without violating the principle of equal work for equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for services
performed." Similarly, the Philippine Legal Encyclopedia states that "salary" is the
91

"[c]onsideration paid at regular intervals for the rendering of services." In Songco v. National
Labor Relations Commission,
24
we said that:
"salary" means a recompense or consideration made to a person for his pains or industry
in another man's business. Whether it be derived from "salarium," or more fancifully from
"sal," the pay of the Roman soldier, it carries with it the fundamental idea of
compensation for services rendered. (Emphasis supplied.)
While we recognize the need of the School to attract foreign-hires, salaries should not be used as
an enticement to the prejudice of local-hires. The local-hires perform the same services as
foreign-hires and they ought to be paid the same salaries as the latter. For the same reason, the
"dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the
distinction in salary rates. The dislocation factor and limited tenure affecting foreign-hires are
adequately compensated by certain benefits accorded them which are not enjoyed by local-hires,
such as housing, transportation, shipping costs, taxes and home leave travel allowances.
The Constitution enjoins the State to "protect the rights of workers and promote their
welfare,"
25
"to afford labor full protection."
26
The State, therefore, has the right and duty to
regulate the relations between labor and capital.
27
These relations are not merely contractual but
are so impressed with public interest that labor contracts, collective bargaining agreements
included, must yield to the common good.
28
Should such contracts contain stipulations that are
contrary to public policy, courts will not hesitate to strike down these stipulations.
In this case, we find the point-of-hire classification employed by respondent School to justify the
distinction in the salary rates of foreign-hires and local hires to be an invalid classification. There
is no reasonable distinction between the services rendered by foreign-hires and local-hires. The
practice of the School of according higher salaries to foreign-hires contravenes public policy and,
certainly, does not deserve the sympathy of this Court.1avvphi1
We agree, however, that foreign-hires do not belong to the same bargaining unit as the local-
hires.
A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of
the entire body of employees, consistent with equity to the employer, indicate to be the best
suited to serve the reciprocal rights and duties of the parties under the collective bargaining
provisions of the law."
29
The factors in determining the appropriate collective bargaining unit are
(1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees' interest,
such as substantial similarity of work and duties, or similarity of compensation and working
conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining history; and (4)
similarity of employment status.
30
The basic test of an asserted bargaining unit's acceptability is
whether or not it is fundamentally the combination which will best assure to all employees the
exercise of their collective bargaining rights.
31

It does not appear that foreign-hires have indicated their intention to be grouped together with
local-hires for purposes of collective bargaining. The collective bargaining history in the School
also shows that these groups were always treated separately. Foreign-hires have limited tenure;
local-hires enjoy security of tenure. Although foreign-hires perform similar functions under the
same working conditions as the local-hires, foreign-hires are accorded certain benefits not
granted to local-hires. These benefits, such as housing, transportation, shipping costs, taxes,
and home leave travel allowance, are reasonably related to their status as foreign-hires, and
justify the exclusion of the former from the latter. To include foreign-hires in a bargaining unit
with local-hires would not assure either group the exercise of their respective collective
bargaining rights.
92

WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART.
The Orders of the Secretary of Labor and Employment dated June 10, 1996 and March 19, 1997,
are hereby REVERSED and SET ASIDE insofar as they uphold the practice of respondent School
of according foreign-hires higher salaries than local-hires.
SO ORDERED.
Puno and Pardo, JJ., concur.
Davide, Jr., C.J., on official leave.
Ynares-Santiago, J., is on leave.


Footnotes
1
Issued on June 19, 1975 (Authorizing International School, Inc. to Donate Its Real
Properties to the Government of the Republic of the Philippines and Granting It Certain
Rights.)
2
Rollo, p. 328.
3
Id., at 324.
4
Id., at 8.
5
Id., at 325. The breakdown is as follows:
Americans 17
Australian 2
Belgian 1
British 2
Burmese 1
Canadian 2
Chinese 2
French 1
German 1
Indian 5
Japanese 1
Malaysian 1
New Zealander 1
Spanish 1

93

6
Id., at 39.
7
Id., at 38-39.
8
In Section 1, Article XII thereof.
9
Statute of the International Court of Justice, art. 38.
10
M. DEFENSOR-SANTIAGO, International Law 75 (1999), citing Judge Hudson in River
Meuse Case, (1937) Ser. A/B No. 70.
11
Ibid., citing Rann of Kutch Arbitration (India vs. Pakistan), 50 ILR 2 (1968).
12
Adopted by the General Assembly of the United Nations on December 10, 1948. Article
1 thereof states: "All human beings are born free and equal in dignity and rights. Article 2
provides, "1. Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status."
13
Adopted by the General of the United Nations in Resolution 2200 (XXI) of 16 December
1966. Article 2 provides: "2. The States Parties to the present Covenant undertake to
guarantee that the rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status."
14
Adopted by the General assembly of the United Nations in Resolution 2106 (XX) 21
December 1965. Article 2 of the Convention states: "States Parties condemn racial
discrimination and undertake to pursue by all appropriate means and without delay a
policy of eliminating racial discrimination in all its forms and promoting understanding
among all races . . . ."
15
Adopted at Paris, December 14, 1960. Under Article 3, the States Parties undertake,
among others, "to abrogate any statutory provisions and any administrative instructions
and to discontinue any administrative practices which involve discrimination in
education." Under Article 4, "The States Parties to this Convention undertake further
more to formulate, develop and apply a national policy which, by methods appropriate to
the circumstances and to national usage, will tend to promote equality of opportunity and
of treatment in the matter of education . . . ."
16
Adopted by the General Conference of the International Labor Organization at Geneva,
June 25, 1958. Article 2 provides that, "Each Member for which this Convention is in
force undertakes to declare and pursue a national policy designed to promote, by
methods appropriate to national condition and practice, equality of opportunity and
treatment in respect of employment and occupation, with a view to eliminating any
discrimination in respect thereof.
17
In Article XIII, Section 3 thereof.
18
Id.
19
In Article 3 thereof.
94

20
E.g., Article 135 of the Labor Code declares it unlawful for the employer to require, not
only as a condition of employment, but also as a condition for the continuation of
employment, that a woman shall not get married.
21
In relation to Articles 288 and 289 of the same Code.
22
Indeed, the government employs this rule in fixing the compensation of government
employees. Thus, Republic Act No. 6758 (An Act Prescribing a Revised Compensation and
Position Classification System in the Government and for Other Purposes) declares it "the
policy of the State to provide equal pay for substantially equal work and to base
differences in pay upon substantive differences in duties and responsibilities, and
qualification requirements of the positions. See also the Preamble of Presidential Decree
No. 985 (A Decree Revising the Position Classification and Compensation Systems in the
National Government, and Integrating the same).1wphi1.nt
23
Rollo, p. 491.
24
183 SCRA 610 (1990).
25
In Section 18, Article II thereof.
26
In Section 3, Article XIII thereof. See also Article 3 of the Labor Code.
27
See Sec. 3, Article XIII, Constitution. Article 3 of the Labor Code.
28
Art. 1700, Civil Code.
29
Toyota Motor Philippines Corporation vs. Toyota Motor Philippines Federation Labor
Union and the Secretary of Labor and Employment, 268 SCRA 573 (1997); San Miguel
Corporation vs. Laguesma, 236 SCRA 595 (1994).
30
San Miguel Corporation vs. Laguesma, supra.
31
Belyca Corporation vs. Ferrer-Calleja, 188 SCRA 184 (1988).









95

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23794 February 17, 1968
ORMOC SUGAR COMPANY, INC., plaintiff-appellant,
vs.
THE TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF ORMOC CITY, HON.
ESTEBAN C. CONEJOS as Mayor of Ormoc City and ORMOC CITY, defendants-appellees.
Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee, Carreon & Taada for plaintiff-
appellant.
Ramon O. de Veyra for defendants-appellees.
BENGZON, J.P., J.:
On January 29, 1964, the Municipal Board of Ormoc City passed
1
Ordinance No. 4, Series
of 1964, imposing "on any and all productions of centrifugal sugar milled at the Ormoc Sugar
Company, Inc., in Ormoc City a municipal tax equivalent to one per centum (1%) per export sale
to the United States of America and other foreign countries."
2

Payments for said tax were made, under protest, by Ormoc Sugar Company, Inc. on March
20, 1964 for P7,087.50 and on April 20, 1964 for P5,000, or a total of P12,087.50.
On June 1, 1964, Ormoc Sugar Company, Inc. filed before the Court of First Instance of
Leyte, with service of a copy upon the Solicitor General, a complaint
3
against the City of Ormoc
as well as its Treasurer, Municipal Board and Mayor, alleging that the afore-stated ordinance is
unconstitutional for being violative of the equal protection clause (Sec. 1[1], Art. III, Constitution)
and the rule of uniformity of taxation (Sec. 22[1]), Art. VI, Constitution), aside from being an
export tax forbidden under Section 2287 of the Revised Administrative Code. It further alleged
that the tax is neither a production nor a license tax which Ormoc City under Section 15-kk of
its charter and under Section 2 of Republic Act 2264, otherwise known as the Local Autonomy
Act, is authorized to impose; and that the tax amounts to a customs duty, fee or charge in
violation of paragraph 1 of Section 2 of Republic Act 2264 because the tax is on both the sale
and export of sugar.
Answering, the defendants asserted that the tax ordinance was within defendant city's
power to enact under the Local Autonomy Act and that the same did not violate the afore-cited
constitutional limitations. After pre-trial and submission of the case on memoranda, the Court of
First Instance, on August 6, 1964, rendered a decision that upheld the constitutionality of the
ordinance and declared the taxing power of defendant chartered city broadened by the Local
Autonomy Act to include all other forms of taxes, licenses or fees not excluded in its charter.
Appeal therefrom was directly taken to Us by plaintiff Ormoc Sugar Company, Inc.
Appellant alleges the same statutory and constitutional violations in the aforesaid taxing
ordinance mentioned earlier.
Section 1 of the ordinance states: "There shall be paid to the City Treasurer on any and all
productions of centrifugal sugar milled at the Ormoc Sugar Company, Incorporated, in Ormoc
City, a municipal tax equivalent to one per centum (1%) per export sale to the United States of
America and other foreign countries." Though referred to as a tax on the export of centrifugal
96

sugar produced at Ormoc Sugar Company, Inc. For production of sugar alone is not taxable; the
only time the tax applies is when the sugar produced is exported.
Appellant questions the authority of the defendant Municipal Board to levy such an export
tax, in view of Section 2287 of the Revised Administrative Code which denies from municipal
councils the power to impose an export tax. Section 2287 in part states: "It shall not be in the
power of the municipal council to impose a tax in any form whatever, upon goods and
merchandise carried into the municipality, or out of the same, and any attempt to impose an
import or export tax upon such goods in the guise of an unreasonable charge for wharf age use
of bridges or otherwise, shall be void."
Subsequently, however, Section 2 of Republic Act 2264 effective June 19, 1959, gave
chartered cities, municipalities and municipal districts authority to levy for public purposes just
and uniform taxes, licenses or fees. Anent the inconsistency between Section 2287 of the Revised
Administrative Code and Section 2 of Republic Act 2264, this Court, in Nin Bay Mining Co. v.
Municipality of Roxas
4
held the former to have been repealed by the latter. And expressing Our
awareness of the transcendental effects that municipal export or import taxes or licenses will
have on the national economy, due to Section 2 of Republic Act 2264, We stated that there was
no other alternative until Congress acts to provide remedial measures to forestall any
unfavorable results.
The point remains to be determined, however, whether constitutional limits on the power
of taxation, specifically the equal protection clause and rule of uniformity of taxation, were
infringed.
The Constitution in the bill of rights provides: ". . . nor shall any person be denied the
equal protection of the laws." (Sec. 1 [1], Art. III) In Felwa vs. Salas,
5
We ruled that the equal
protection clause applies only to persons or things identically situated and does not bar a
reasonable classification of the subject of legislation, and a classification is reasonable where (1)
it is based on substantial distinctions which make real differences; (2) these are germane to the
purpose of the law; (3) the classification applies not only to present conditions but also to future
conditions which are substantially identical to those of the present; (4) the classification applies
only to those who belong to the same class.
A perusal of the requisites instantly shows that the questioned ordinance does not meet
them, for it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company,
Inc. and none other. At the time of the taxing ordinance's enactment, Ormoc Sugar Company,
Inc., it is true, was the only sugar central in the city of Ormoc. Still, the classification, to be
reasonable, should be in terms applicable to future conditions as well. The taxing ordinance
should not be singular and exclusive as to exclude any subsequently established sugar central,
of the same class as plaintiff, for the coverage of the tax. As it is now, even if later a similar
company is set up, it cannot be subject to the tax because the ordinance expressly points only to
Ormoc City Sugar Company, Inc. as the entity to be levied upon.
Appellant, however, is not entitled to interest; on the refund because the taxes were not
arbitrarily collected (Collector of Internal Revenue v. Binalbagan).
6
At the time of collection, the
ordinance provided a sufficient basis to preclude arbitrariness, the same being then presumed
constitutional until declared otherwise.
WHEREFORE, the decision appealed from is hereby reversed, the challenged ordinance is
declared unconstitutional and the defendants-appellees are hereby ordered to refund the
P12,087.50 plaintiff-appellant paid under protest. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.1wph1.t
97

Footnotes
1
Resolution No. 30, Series of 1964.
2
Section 1, emphasis supplied.
3
An action for declaratory judgment was also filed on May 23, 1964 (Civil Case No. 665-0)
but this and the present case were tried jointly.
4
L-20125, July 20, 1965.
5
L-26511, Oct. 29, 1966.
6
L-12752, Jan. 30, 1965.




















98

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 105371 November 11, 1993
THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its President, BERNARDO P.
ABESAMIS, Vice-President for Legal Affairs, MARIANO M. UMALI, Director for Pasig,
Makati, and Pasay, Metro Manila, ALFREDO C. FLORES, and Chairman of the Committee
on Legal Aid, JESUS G. BERSAMIRA, Presiding Judges of the Regional Trial Court, Branch
85, Quezon City and Branches 160, 167 and 166, Pasig, Metro Manila, respectively: the
NATIONAL CONFEDERATION OF THE JUDGES ASSOCIATION OF THE PHILIPPINES,
composed of the METROPOLITAN TRIAL COURT JUDGES ASSOCIATION rep. by its
President. REINATO QUILALA of the MUNICIPAL TRIAL CIRCUIT COURT, Manila; THE
MUNICIPAL JUDGES LEAGUE OF THE PHILIPPINES rep. by its President, TOMAS G.
TALAVERA; by themselves and in behalf of all the Judges of the Regional Trial and Shari'a
Courts, Metropolitan Trial Courts and Municipal Courts throughout the
Country, petitioners,
vs.
HON. PETE PRADO, in his capacity as Secretary of the Department of Transportation and
Communications, JORGE V. SARMIENTO, in his capacity as Postmaster General, and the
PHILIPPINE POSTAL CORP., respondents.

CRUZ, J.:
The basic issue raised in this petition is the independence of the Judiciary. It is asserted by the
petitioners that this hallmark of republicanism is impaired by the statute and circular they are
here challenging. The Supreme Court is itself affected by these measures and is thus an
interested party that should ordinarily not also be a judge at the same time. Under our system of
government, however, it cannot inhibit itself and must rule upon the challenge, because no other
office has the authority to do so. We shall therefore act upon this matter not with officiousness
but in the discharge of an unavoidable duty and, as always, with detachment and fairness.
The main target of this petition is Section 35 of R.A. No. 7354 as implemented by the Philippine
Postal Corporation through its Circular No.
92-28. These measures withdraw the franking privilege from the Supreme Court, the Court of
Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts,
and the Land Registration Commission and its Registers of Deeds, along with certain other
government offices.
The petitioners are members of the lower courts who feel that their official functions as judges
will be prejudiced by the above-named measures. The National Land Registration Authority has
taken common cause with them insofar as its own activities, such as sending of requisite notices
in registration cases, affect judicial proceedings. On its motion, it has been allowed to intervene.
The petition assails the constitutionality of R.A. No. 7354 on the grounds that: (1) its title
embraces more than one subject and does not express its purposes; (2) it did not pass the
required readings in both Houses of Congress and printed copies of the bill in its final form were
99

not distributed among the members before its passage; and (3) it is discriminatory and
encroaches on the independence of the Judiciary.
We approach these issues with one important principle in mind, to wit, the presumption of the
constitutionality of statutes. The theory is that as the joint act of the Legislature and the
Executive, every statute is supposed to have first been carefully studied and determined to be
constitutional before it was finally enacted. Hence, unless it is clearly shown that it is
constitutionally flawed, the attack against its validity must be rejected and the law itself upheld.
To doubt is to sustain.
I
We consider first the objection based on Article VI, Sec. 26(l), of the Constitution providing that
"Every bill passed by the Congress shall embrace only one subject which shall be expressed in
the title thereof."
The purposes of this rule are: (1) to prevent hodge-podge or "log-rolling" legislation; (2) to prevent
surprise or fraud upon the legislature by means of provisions in bills of which the title gives no
intimation, and which might therefore be overlooked and carelessly and unintentionally adopted;
and (3) to fairly apprise the people, through such publication of legislative proceedings as is
usually made, of the subject of legislation that is being considered, in order that they may have
opportunity of being heard thereon, by petition or otherwise, if they shall so desire.
1

It is the submission of the petitioners that Section 35 of R.A. No. 7354 which withdrew the
franking privilege from the Judiciary is not expressed in the title of the law, nor does it reflect its
purposes.
R.A. No. 7354 is entitled "An Act Creating the Philippine Postal Corporation, Defining its Powers,
Functions and Responsibilities, Providing for Regulation of the Industry and for Other Purposes
Connected Therewith."
The objectives of the law are enumerated in Section 3, which provides:
The State shall pursue the following objectives of a nationwide postal system:
a) to enable the economical and speedy transfer of mail and other postal matters,
from sender to addressee, with full recognition of their privacy or confidentiality;
b) to promote international interchange, cooperation and understanding through
the unhampered flow or exchange of postal matters between nations;
c) to cause or effect a wide range of postal services to cater to different users and
changing needs, including but not limited to, philately, transfer of monies and
valuables, and the like;
d) to ensure that sufficient revenues are generated by and within the industry to
finance the overall cost of providing the varied range of postal delivery and
messengerial services as well as the expansion and continuous upgrading of
service standards by the same.
Sec. 35 of R.A. No. 7354, which is the principal target of the petition, reads as follows:
100

Sec. 35. Repealing Clause. All acts, decrees, orders, executive orders,
instructions, rules and regulations or parts thereof inconsistent with the
provisions of this Act are repealed or modified accordingly.
All franking privileges authorized by law are hereby repealed, except those
provided for under Commonwealth Act No. 265, Republic Acts Numbered 69, 180,
1414, 2087 and 5059. The Corporation may continue the franking privilege under
Circular No. 35 dated October 24, 1977 and that of the Vice President, under such
arrangements and conditions as may obviate abuse or unauthorized use thereof.
The petitioners' contention is untenable. We do not agree that the title of the challenged act
violates the Constitution.
The title of the bill is not required to be an index to the body of the act, or to be as
comprehensive as to cover every single detail of the measure. It has been held that if the title
fairly indicates the general subject, and reasonably covers all the provisions of the act, and is not
calculated to mislead the legislature or the people, there is sufficient compliance with the
constitutional requirement.
2

To require every end and means necessary for the accomplishment of the general objectives of
the statute to be expressed in its title would not only be unreasonable but would actually render
legislation impossible.
3
As has been correctly explained:
The details of a legislative act need not be specifically stated in its title, but matter
germane to the subject as expressed in the title, and adopted to the
accomplishment of the object in view, may properly be included in the act. Thus, it
is proper to create in the same act the machinery by which the act is to be
enforced, to prescribe the penalties for its infraction, and to remove obstacles in
the way of its execution. If such matters are properly connected with the subject
as expressed in the title, it is unnecessary that they should also have special
mention in the title (Southern Pac. Co. v. Bartine, 170 Fed. 725).
This is particularly true of the repealing clause, on which Cooley writes: "The repeal of a statute
on a given subject is properly connected with the subject matter of a new statute on the same
subject; and therefore a repealing section in the new statute is valid, notwithstanding that the
title is silent on the subject. It would be difficult to conceive of a matter more germane to an act
and to the object to be accomplished thereby than the repeal of previous legislations connected
therewith."
4

The reason is that where a statute repeals a former law, such repeal is the effect and not the
subject of the statute; and it is the subject, not the effect of a law, which is required to be briefly
expressed in its title.
5
As observed in one case,
6
if the title of an act embraces only one subject,
we apprehend it was never claimed that every other act which repeals it or alters by implication
must be mentioned in the title of the new act. Any such rule would be neither within the reason
of the Constitution, nor practicable.
We are convinced that the withdrawal of the franking privilege from some agencies is germane to
the accomplishment of the principal objective of R.A. No. 7354, which is the creation of a more
efficient and effective postal service system. Our ruling is that, by virtue of its nature as a
repealing clause, Section 35 did not have to be expressly included in the title of the said law.
II
The petitioners maintain that the second paragraph of Sec. 35 covering the repeal of the franking
privilege from the petitioners and this Court under E.O. 207, PD 1882 and PD 26 was not
101

included in the original version of Senate Bill No. 720 or House Bill No. 4200. As this paragraph
appeared only in the Conference Committee Report, its addition, violates Article VI, Sec. 26(2) of
the Constitution, reading as follows:
(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.
The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that
amendment to any bill when the House and the Senate shall have differences thereon may be
settled by a conference committee of both chambers. They stress that Sec. 35 was never a
subject of any disagreement between both Houses and so the second paragraph could not have
been validly added as an amendment.
These argument are unacceptable.
While it is true that a conference committee is the mechanism for compromising differences
between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader
function is described thus:
A conference committee may, deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where
the conference committee is not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which new subject matter can be inserted
into the conference bill. But occasionally a conference committee produces
unexpected results, results beyond its mandate, These excursions occur even
where the rules impose strict limitations on conference committee jurisdiction.
This is symptomatic of the authoritarian power of conference committee (Davies,
Legislative Law and Process: In a Nutshell, 1986 Ed., p.81).
It is a matter of record that the conference Committee Report on the bill in question was returned
to and duly approved by both the Senate and the House of Representatives. Thereafter, the bill
was enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V.
Mitra of the House of Representatives as having been duly passed by both Houses of Congress. It
was then presented to and approved by President Corazon C. Aquino on April 3, 1992.
Under the doctrine of separation powers, the Court may not inquire beyond the certification of
the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v.
Gimenez
7
laid down the rule that the enrolled bill, is conclusive upon the Judiciary (except in
matters that have to be entered in the journals like theyeas and nays on the final reading of the
bill).
8
The journals are themselves also binding on the Supreme Court, as we held in the old (but
still valid) case of U.S. vs. Pons,
9
where we explained the reason thus:
To inquire into the veracity of the journals of the Philippine legislature when they
are, as we have said, clear and explicit, would be to violate both the, letter and
spirit of the organic laws by which the Philippine Government was brought into
existence, to invade a coordinate and independent department of the Government,
and to interfere with the legitimate powers and functions, of the Legislature.
Applying these principles, we shall decline to look into the petitioners' charges that an
amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and
102

that copies thereof in its final form were not distributed among the members of each House. Both
the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in
accordance with Article VI, Sec. 26(2) of the Constitution. We are bound by such official
assurances from a coordinate department of the government, to which we owe, at the very least,
a becoming courtesy.
III
The third and most serious challenge of the petitioners is based on the equal protection clause.
It is alleged that R.A. No. 7354 is discriminatory because while withdrawing the franking
privilege from the Judiciary, it retains the same for the President of the Philippines, the Vice
President of the Philippines; Senators and Members of the House of Representatives, the
Commission on Elections; former Presidents of the Philippines; the National Census and
Statistics Office; and the general public in the filing of complaints against public offices and
officers.
10

The respondents counter that there is no discrimination because the law is based on a valid
classification in accordance with the equal protection clause. In fact, the franking privilege has
been withdrawn not only from the Judiciary but also the Office of Adult Education, the Institute
of National Language; the Telecommunications Office; the Philippine Deposit Insurance
Corporation; the National Historical Commission; the Armed Forces of the Philippines; the Armed
Forces of the Philippines Ladies Steering Committee; the City and Provincial Prosecutors; the
Tanodbayan (Office of Special Prosecutor); the Kabataang Barangay; the Commission on the
Filipino Language; the Provincial and City Assessors; and the National Council for the Welfare of
Disabled Persons.
11

The equal protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has nonetheless been
embodied in a separate clause in Article III Sec. 1., of the Constitution to provide for a more,
specific guaranty against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to
cut it down is the equal protection clause.
According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed,
12
Similar subjects, in other words, should not be treated differently, so as to give
undue favor to some and unjustly discriminate against others.
The equal protection clause does not require the universal application of the laws on all persons
or things without distinction. This might in fact sometimes result in unequal protection, as
where, for example, a law prohibiting mature books to all persons, regardless of age, would
benefit the morals of the youth but violate the liberty of adults. What the clause requires is
equality among equals as determined according to a valid classification. By classification is
meant the grouping of persons or things similar to each other in certain particulars and different
from all others in these same particulars.
13

What is the reason for the grant of the franking privilege in the first place? Is the franking
privilege extended to the President of the Philippines or the Commission on Elections or to former
Presidents of the Philippines purely as a courtesy from the lawmaking body? Is it offered because
of the importance or status of the grantee or because of its need for the privilege? Or have the
grantees been chosen pell-mell, as it were, without any basis at all for the selection?
103

We reject outright the last conjecture as there is no doubt that the statute as a whole was
carefully deliberated upon, by the political departments before it was finally enacted. There is
reason to suspect, however, that not enough care or attention was given to its repealing clause,
resulting in the unwitting withdrawal of the franking privilege from the Judiciary.
We also do not believe that the basis of the classification was mere courtesy, for it is
unimaginable that the political departments would have intended this serious slight to the
Judiciary as the third of the major and equal departments the government. The same
observations are made if the importance or status of the grantee was the criterion used for the
extension of the franking privilege, which is enjoyed by the National Census and Statistics Office
and even some private individuals but not the courts of justice.
In our view, the only acceptable reason for the grant of the franking privilege was the
perceived need of the grantee for the accommodation, which would justify a waiver of substantial
revenue by the Corporation in the interest of providing for a smoother flow of communication
between the government and the people.
Assuming that basis, we cannot understand why, of all the departments of the government, it is
the Judiciary, that has been denied the franking privilege. There is no question that if there is
any major branch of the government that needs the privilege, it is the Judicial Department, as
the respondents themselves point out. Curiously, the respondents would justify the distinction
on the basis precisely of this need and, on this basis, deny the Judiciary the franking privilege
while extending it to others less deserving.
In their Comment, the respondents point out that available data from the Postal Service Office
show that from January 1988 to June 1992, the total volume of frank mails amounted to
P90,424,175.00. Of this amount, frank mails from the Judiciary and other agencies whose
functions include the service of judicial processes, such as the intervenor, the Department of
Justice and the Office of the Ombudsman, amounted to P86,481,759. Frank mails coming
fromthe Judiciary amounted to P73,574,864.00, and those coming from the petitioners reached
the total amount of P60,991,431.00. The respondents' conclusion is that because of this
considerable volume of mail from the Judiciary, the franking privilege must be withdrawn from
it.
The argument is self-defeating. The respondents are in effect saying that the franking privilege
should be extended only to those who do not need it very much, if at all, (like the widows of
former Presidents) but not to those who need it badly (especially the courts of justice). It is like
saying that a person may be allowed cosmetic surgery although it is not really necessary but not
an operation that can save his life.
If the problem of the respondents is the loss of revenues from the franking privilege, the remedy,
it seems to us, is to withdraw it altogether from all agencies of government, including those who
do not need it. The problem is not solved by retaining it for some and withdrawing it from others,
especially where there is no substantial distinction between those favored, which may or may not
need it at all, and the Judiciary, which definitely needs it. The problem is not solved by violating
the Constitution.
In lumping the Judiciary with the other offices from which the franking privilege has been
withdrawn, Section 35 has placed the courts of justice in a category to which it does not belong.
If it recognizes the need of the President of the Philippines and the members of Congress for the
franking privilege, there is no reason why it should not recognize a similar and in fact greater
need on the part of the Judiciary for such privilege. While we may appreciate the withdrawal of
the franking privilege from the Armed Forces of the Philippines Ladies Steering Committee, we
fail to understand why the Supreme Court should be similarly treated as that Committee. And
while we may concede the need of the National Census and Statistics Office for the franking
104

privilege, we are intrigued that a similar if not greater need is not recognized in the courts of
justice.
(On second thought, there does not seem to be any justifiable need for withdrawing the privilege
from the Armed Forces of the Philippines Ladies Steering Committee, which, like former
Presidents of the Philippines or their widows, does not send as much frank mail as the
Judiciary.)
It is worth observing that the Philippine Postal Corporation, as a government-controlled
corporation, was created and is expected to operate for the purpose of promoting the public
service. While it may have been established primarily for private gain, it cannot excuse itself from
performing certain functions for the benefit of the public in exchange for the franchise extended
to it by the government and the many advantages it enjoys under its charter.
14
Among the
services it should be prepared to extend is free carriage of mail for certain offices of the
government that need the franking privilege in the discharge of their own public functions.
We also note that under Section 9 of the law, the Corporation is capitalized at P10 billion pesos,
55% of which is supplied by the Government, and that it derives substantial revenues from the
sources enumerated in Section 10, on top of the exemptions it enjoys. It is not likely that the
retention of the franking privilege of the Judiciary will cripple the Corporation.
At this time when the Judiciary is being faulted for the delay in the administration of justice, the
withdrawal from it of the franking privilege can only further deepen this serious problem. The
volume of judicial mail, as emphasized by the respondents themselves, should stress the
dependence of the courts of justice on the postal service for communicating with lawyers and
litigants as part of the judicial process. The Judiciary has the lowest appropriation in the
national budget compared to the Legislative and Executive Departments; of the P309 billion
budgeted for 1993, only .84%, or less than 1%, is alloted for the judiciary. It should not be hard
to imagine the increased difficulties of our courts if they have to affix a purchased stamp to every
process they send in the discharge of their judicial functions.
We are unable to agree with the respondents that Section 35 of R.A. No. 7354 represents a valid
exercise of discretion by the Legislature under the police power. On the contrary, we find its
repealing clause to be a discriminatory provision that denies the Judiciary the equal protection of
the laws guaranteed for all persons or things similarly situated. The distinction made by the law
is superficial. It is not based on substantial distinctions that make real differences between the
Judiciary and the grantees of the franking privilege.
This is not a question of wisdom or power into which the Judiciary may not intrude. It is a
matter of arbitrariness that this Court has the duty and power to correct.
IV
In sum, we sustain R.A. No. 7354 against the attack that its subject is not expressed in its title
and that it was not passed in accordance with the prescribed procedure. However, we annul
Section 35 of the law as violative of Article 3, Sec. 1, of the Constitution providing that no person
shall "be deprived of the equal protection of laws."
We arrive at these conclusions with a full awareness of the criticism it is certain to provoke.
While ruling against the discrimination in this case, we may ourselves be accused of similar
discrimination through the exercise of our ultimate power in our own favor. This is inevitable.
Criticism of judicial conduct, however undeserved, is a fact of life in the political system that we
are prepared to accept.. As judges, we cannot debate with our detractors. We can only decide the
cases before us as law imposes on us the duty to be fair and our own conscience gives us the
light to be right.
105

ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is declared
UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the franking
privilege from the Supreme Court, the Court of Appeals, the Regional trail Courts, the Municipal
trial Courts, and the National Land Registration Authority and its Register of Deeds to all of
which offices the said privilege shall be RESTORED. The temporary restraining order dated June
2, 1992, is made permanent.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno
and Vitug, JJ., concur.
Bellosillo, J., is on leave.

# Footnotes
1 Cooley, Constitutional Limitations, 8th Ed., pp. 295-296; State vs. Dolan, 14
L.R.A. 1259; State v. Doherty, 29 Pac. 855.
2 Public Service Co. v. Recktenwald, 8 A.L.R. 466.
3 Cooley, Constitutional Limitations, 8th Ed., pp. 297.
4 Ibid., p. 302.
5 Southern Pac. Co. v. Bartine, 170 Fed. 737.
6 City of Winona v. School District, 41 N.W. 539.
7 7 SCRA 347.
8 Mabanag v. Lopez Vito, 78 Phil. 1.
9 34 Phil. 729
10 Rollo, pp. 8-9.
11 Ibid., pp. 209-210.
12 Ichong v. Hernandez, 101 Phil. 1155; Sison v. Ancheta, 130 SCRA 654;
Association of Small Landowners in the Philippines v. Secretary of Agrarian
Reform, 175 SCRA 375.
13 International Harvester Co. v. Missouri, 234 US 199.
14 Sec. 14 of R.A. No. 7354


106

SEARCH AND SEIZURE

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:p
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional
Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in
relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his
common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and
Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with
them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation
to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he
was sending the packages to a friend in Zurich, Switzerland. Appellant filled up
the contract necessary for the transaction, writing therein his name, passport
number, the date of shipment and the name and address of the consignee,
namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the
packages. Appellant, however, refused, assuring her that the packages simply
contained books, cigars, and gloves and were gifts to his friend in Zurich. In view
of appellant's representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown corrugated box
one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of
the packages before the box was sealed with masking tape, thus making the box
ready for shipment (Decision, p. 8).
107

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of
Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard
operating procedure, opened the boxes for final inspection. When he opened
appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he
squeezed one of the bundles allegedly containing gloves and felt dried leaves
inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding
from the opening of one of the gloves. He made an opening on one of the cellophane
wrappers and took several grams of the contents thereof (tsn, pp. 29-30, October 6,
1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and
requesting a laboratory examination of the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics
Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the
afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of
Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was
still in his office. Therefore, Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6,
1987).
Job Reyes brought out the box in which appellant's packages were placed and, in
the presence of the NBI agents, opened the top flaps, removed the styro-foam and
took out the cellophane wrappers from inside the gloves. Dried marijuana leaves
were found to have been contained inside the cellophane wrappers (tsn, p. 38,
October 6, 1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes.
He discovered that the package contained bricks or cake-like dried marijuana
leaves. The package which allegedly contained tabacalera cigars was also opened.
It turned out that dried marijuana leaves were neatly stocked underneath the
cigars (tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp.
2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in
his passport being the Manila Central Post Office, the agents requested assistance from the
latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central
Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried
leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were
marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo,
pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known
as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
108

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION
OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS
POSSESSION (Appellant's Brief, p. 1;Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should
be held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure
had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the
persons or things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20
SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search
and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of
its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is
carried over up to the present with the advent of the 1987 Constitution.
109

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down
the admissibility of evidence obtained in violation of the constitutional safeguard against
unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim
v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales,
145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other
authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought
to be excluded was primarily discovered and obtained by a private person, acting in a
private capacity and without the intervention and participation of State authorities. Under
the circumstances, can accused/appellant validly claim that his constitutional right against
unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private
individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from interference by government,
included in which is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except
under the circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any unwarranted intrusion
by government, which is called upon to refrain from any invasion of his dwelling
and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US
757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures,
and as shown in previous cases, its protection applies to governmental action. Its
origin and history clearly show that it was intended as a restraint upon the
activities of sovereign authority, and was not intended to be a limitation upon
other than governmental agencies; as against such authority it was the purpose of
the Fourth Amendment to secure the citizen in the right of unmolested occupation
of his dwelling and the possession of his property, subject to the right of seizure
by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking
attendant who searched the automobile to ascertain the owner thereof found marijuana instead,
without the knowledge and participation of police authorities, was declared admissible in
prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).
110

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private citizen
the owner of a motel in which appellant stayed overnight and in which he left
behind a travel case containing the evidence***complained of. The search was
made on the motel owner's own initiative. Because of it, he became suspicious,
called the local police, informed them of the bag's contents, and made it available
to the authorities.
The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment
only proscribes governmental action."
The contraband in the case at bar having come into possession of the Government without the
latter transgressing appellant's rights against unreasonable search and seizure, the Court sees
no cogent reason why the same should not be admitted against him in the prosecution of the
offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both
instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI
agents conducted an illegal search and seizure of the prohibited merchandise. Records of the
case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who
made search/inspection of the packages. Said inspection was reasonable and a standard
operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18;
pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of
the same to the NBI and later summoned the agents to his place of business. Thereafter, he
opened the parcel containing the rest of the shipment and entrusted the care and custody
thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an
illegal one, contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe
and look at that which is in plain sight is not a search. Having observed that which is open,
where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429
SW2d 135). Where the contraband articles are identified without a trespass on the part of the
arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US
559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v.
State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of
private individuals finds support in the deliberations of the Constitutional Commission. True, the
liberties guaranteed by the fundamental law of the land must always be subject to protection.
111

But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of
Rights answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the
essence of constitutional democracy. Protection against whom? Protection against
the state. The Bill of Rights governs the relationship between the individual and the
state. Its concern is not the relation between individuals, between a private
individual and other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of
the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary
and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first
secured if it is to pass the test of constitutionality. However, if the search is made at the behest
or initiative of the proprietor of a private establishment for its own and private purposes, as in
the case at bar, and without the intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private individual, not the law enforcers,
is involved. In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit of alleged
unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified
by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure,
it matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar,
167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987].
The modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with the State
and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked
against the State by an individual unjustly traduced by the exercise of sovereign authority. To
agree with appellant that an act of a private individual in violation of the Bill of Rights should
also be construed as an act of the State would result in serious legal complications and an
absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private
seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of
appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting
him despite the undisputed fact that his rights under the constitution while under custodial
investigation were not observed.
112

Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law
enforcers testified that accused/appellant was informed of his constitutional rights. It is
presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their
testimonies should be given full faith and credence, there being no evidence to the contrary.
What is clear from the records, on the other hand, is that appellant refused to give any written
statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused
here, did you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused
availed of his constitutional right not to give any written statement, sir. (TSN,
October 8, 1987, p. 62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we
have examined the assailed judgment of the trial court and nowhere is there any reference made
to the testimony of appellant while under custodial investigation which was utilized in the finding
of conviction. Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he
was not the owner of the packages which contained prohibited drugs but rather a certain
Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the
course of their 30-minute conversation, Michael requested him to ship the packages and gave
him P2,000.00 for the cost of the shipment since the German national was about to leave the
country the next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment
of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to
comply with the undertaking without first ascertaining its contents. As stated by the trial court,
"(a) person would not simply entrust contraband and of considerable value at that as the
marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the
Accused. The Accused, on the other hand, would not simply accept such undertaking to take
custody of the packages and ship the same from a complete stranger on his mere say-so"
(Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to
explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary weight than the
testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA
571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the
Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal
Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment,
Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an
hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
113

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must
be credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van
Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant
did not even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise, appellant
should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the
contrary, appellant signed the contract as the owner and shipper thereof giving more weight to
the presumption that things which a person possesses, or exercises acts of ownership over, are
owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of
the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Footnotes
* Penned by Judge Romeo J. Callejo.
** It reads: "The right of the people to be secure in their persons, houses, papers
and effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the persons
or things to be seized."
*** Forged checks.







114

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 113271 October 16, 1997
WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA
CATOLICO, respondents.

DAVIDE, JR., J.:
Nor is he a true Servant [who] buys dear to share in the Profit with the Seller.
1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private
respondent Antonia Melodia Catolico (hereafter Catolico) not a "true Servant," thereby assailing
the 30 September 1993 decision
2
and December 1993 Resolution
3
of the National Labor
Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which sustained the
reinstatement and monetary awards in favor of private respondent
4
and denied the petitioners'
motion for reconsideration.
5

The facts are as follows:
Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter
WATEROUS) on 15 August 1988.
On 31 July 1989, Catolico received a memorandum
6
from WATEROUS Vice President-General
Manager Emma R. Co warning her not to dispense medicine to employees chargeable to the
latter's accounts because the same was a prohibited practice. On the same date, Co issued
another memorandum
7
to Catolico warning her not to negotiate with suppliers of medicine
without consulting the Purchasing Department, as this would impair the company's control of
purchases and, besides she was not authorized to deal directly with the suppliers.
As regards the first memorandum, Catolico did not deny her responsibility but explained that her
act was "due to negligence," since fellow employee Irene Soliven "obtained the medicines in bad
faith and through misrepresentation when she claimed that she was given a charge slip by the
Admitting Dept." Catolico then asked the company to look into the fraudulent activities of
Soliven.
8

In a memorandum
9
dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro
warned Catolico against the "rush delivery of medicines without the proper documents."
On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an
irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he
described as follows:
115

. . . A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045
with YSP Sales Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets
at P384.00 per unit. Previews P.O.s issued to YSP, Inc. showed that the price per bottle is
P320.00 while P.O. No. 19045 is priced at P384.00 or an over price of P64.00 per bottle
(or total of P640.00). WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832
dated December 15, 1988. Verification was made to YSP, Inc. to determine the
discrepancy and it was found that the cost per bottle was indeed overpriced. YSP, Inc.
Accounting Department (Ms. Estelita Reyes) confirmed that the difference represents
refund of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as per
their check voucher no. 629552 (shown to the undersigned), which was paid to Ms.
Catolico through China Bank check no. 892068 dated November 9, 1989 . . . .
The undersigned talked to Ms. Catolico regarding the check but she denied having
received it and that she is unaware of the overprice. However, upon conversation with Ms.
Saldana, EDRC Espana Pharmacy Clerk, she confirmed that the check amounting to
P640.00 was actually received by Ms. Catolico. As a matter of fact, Ms. Catolico even
asked Ms. Saldana if she opened the envelope containing the check but Ms. Saldana
answered her "talagang ganyan, bukas." It appears that the amount in question (P640.00)
had been pocketed by Ms. Catolico.
10

Forthwith, in her memorandum
11
dated 37 January 1990, Co asked Catolico to explain, within
twenty-four hours, her side of the reported irregularity. Catolico asked for additional time to give
her explanation,
12
and she was granted a 48-hour extension from 1 to 3 February 1990.
However, on 2 February 1990, she was informed that effective 6 February 1990 to 7 March 1990,
she would be placed on preventive suspension to protect the interests of the company.
13

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice
No. 266 for her to be able to make a satisfactory explanation. In said letter she protested
Saldaa's invasion of her privacy when Saldaa opened an envelope addressed to Catolico.
14

In a letter
15
to Co dated 10 February 1990, Catolico, through her counsel, explained that the
check she received from YSP was a Christmas gift and not a "refund of overprice." She also
averred that the preventive suspension was ill-motivated, as it sprang from an earlier incident
between her and Co's secretary, Irene Soliven.
On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a
memorandum
16
notifying Catolico of her termination; thus:
We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and
Feb. 10, 1990 respectively regarding our imposition of preventive suspension on you for
acts of dishonesty. However, said letters failed to rebut the evidences [sic] in our
possession which clearly shows that as a Pharmacist stationed at Espana Branch, you
actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at
P384.00/bottle with previous price of P320.00/bottle only. A check which you received in
the amount of P640.00 actually represents the refund of over price of said medicines and
this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.
Your actuation constitutes an act of dishonesty detrimental to the interest of the
company. Accordingly, you are hereby terminated effective March 8, 1990.
On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor
practice, illegal dismissal, and illegal suspension.
17

In his decision
18
of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor
practice against petitioners. Nevertheless, he decided in favor of Catolico because petitioners
116

failed to "prove what [they] alleged as complainant's dishonesty," and to show that any
investigation was conducted. Hence, the dismissal was without just cause and due process. He
thus declared the dismissal and suspension illegal but disallowed reinstatement, as it would not
be to the best interest of the parties. Accordingly, he awarded separation pay to Catolico
computed at one-half month's pay for every year of service; back wages for one year; and the
additional sum of P2,000.00 for illegal suspension "representing 30 days work." Arbiter Lopez
computed the award in favor of Catolico as follows:
30 days Preventive Suspension P2,000.00
Back wages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15

TOTAL AWARD P35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the
Labor Arbiter erred in finding that Catolico was denied due process and that there was no just
cause to terminate her services.
In its decision
19
of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on
the ground that petitioners were not able to prove a just cause for Catolico's dismissal from her
employment. It found that petitioner's evidence consisted only of the check of P640.00 drawn by
YSP in favor of complainant, which her co-employee saw when the latter opened the envelope.
But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and
2) of Article III of the Constitution.
20
It concluded:
With the smoking gun evidence of respondents being rendered inadmissible, by virtue of
the constitutional right invoked by complainants, respondents' case falls apart as it is
bereft of evidence which cannot be used as a legal basis for complainant's dismissal.
The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the
appealed decision by deleting the award for illegal suspension as the same was already included
in the computation of the aggregate of the awards in the amount of P35,401.86.
Their motion for reconsideration having been denied, petitioners filed this special civil action
for certiorari, which is anchored on the following grounds:
I. Public respondent committed grave abuse of discretion in its findings of
facts.
II. Due process was duly accorded to private respondent.
III. Public respondent gravely erred in applying Section 3, Article III of the
1987 Constitution.
As to the first and second grounds, petitioners insist that Catolico had been receiving
"commissions" from YSP, or probably from other suppliers, and that the check issued to her on 9
November 1989 was not the first or the last. They also maintained that Catolico occupied a
confidential position and that Catolico's receipt of YSP's check, aggravated by her "propensity to
violate company rules," constituted breach of confidence. And contrary to the findings of NLRC,
Catolico was given ample opportunity to explain her side of the controversy.
117

Anent the third ground, petitioners submit that, in light of the decision in the People
v. Marti,
21
the constitutional protection against unreasonable searches and seizures refers to the
immunity of one's person from interference by government and cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion
by the government.
In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with
the NLRC's decision, as it was of the persuasion that (a) the conclusions reached by public
respondent are inconsistent with its findings of fact; and (b) the incident involving the opening of
envelope addressed to private respondent does not warrant the application of the constitutional
provisions. It observed that Catolico was given "several opportunities" to explain her side of the
check controversy, and concluded that the opportunities granted her and her subsequent
explanation "satisfy the requirements of just cause and due process." The OSG was also
convinced that Catolico's dismissal was based on just cause and that Catolico's admission of the
existence of the check, as well as her "lame excuse" that it was a Christmas gift from YSP,
constituted substantial evidence of dishonesty. Finally, the OSG echoed petitioners' argument
that there was no violation of the right of privacy of communication in this case,
22
adding that
petitioner WATEROUS was justified in opening an envelope from one of its regular suppliers as it
could assume that the letter was a business communication in which it had an interest.
In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC
contends that petitioners miserably failed to prove their claim that it committed grave abuse of
discretion in its findings of fact. It then prays that we dismiss this petition.
In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her dismissal.
The check in issue was given to her, and she had no duty to turn it over to her employer.
Company rules do not prohibit an employee from accepting gifts from clients, and there is no
indication in the contentious check that it was meant as a refund for overpriced medicines.
Besides, the check was discovered in violation of the constitutional provision on the right to
privacy and communication; hence, as correctly held by the NLRC, it was inadmissible in
evidence.
Catolico likewise disputes petitioners' claim that the audit report and her initial response that
she never received a check were sufficient to justify her dismissal. When she denied having
received a check from YSP, she meant that she did not receive any refund of overprice, consistent
with her position that what she received was a token gift. All that can be gathered from the audit
report is that there was apparently an overcharge, with no basis to conclude that Catolico
pocketed the amount in collusion with YSP. She thus concluded that her dismissal was based on
a mere suspicion.
Finally, Catolico insists that she could not have breached the trust and confidence of
WATEROUS because, being merely a pharmacist, she did not handle "confidential information or
sensitive properties." She was doing the task of a saleslady: selling drugs and making
requisitions when supplies were low.
A thorough review of the record leads us to no other conclusion than that, except as to the third
ground, the instant petition must fail.
Concededly, Catolico was denied due process. Procedural due process requires that an employee
be apprised of the charge against him, given reasonable time to answer the charge, allowed
ample opportunity to be heard and defend himself, and assisted by a representative if the
employee so
desires.
23
Ample opportunity connotes every kind of assistance that management must accord
the employee to enable him to prepare adequately for his defense, including legal
representation.
24

118

In the case at bar, although Catolico was given an opportunity to explain her side, she was
dismissed from the service in the memorandum of 5 March 1990 issued by her Supervisor
after receipt of her letter and that of her counsel. No hearing was ever conducted after the
issues were joined through said letters. The Supervisor's memorandum spoke of "evidences
[sic] in [WATEROUS] possession," which were not, however, submitted. What the
"evidences" [sic] other than the sales invoice and the check were, only the Supervisor
knew.
Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove
just and valid cause for dismissing an employee, and its failure to discharge that burden would
result in a finding that the dismissal is unjustified.
25
Here, WATEROUS proved unequal to the
task.
It is evident from the Supervisor's memorandum that Catolico was dismissed because of an
alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence does not
establish that there was an overcharge. Control Clerk Eugenio C. Valdez, who claims to have
discovered Catolico's inappropriate transaction, stated in his affidavit:
26

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in
violation of the [company] procedure, made an under the table deal with YSP Phils. to
supply WDRC needed medicines like Voren tablets at a jack-up price of P384.00 per
bottle of 50 mg. which has a previous price of only P320.00;
5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the
cost per bottle was indeed overpriced. The Accounting Department of YSP Phils. through
Ms. Estelita Reyes confirmed that there was really an overprice and she said that the
difference was refunded through their check voucher no. 629552 which was shown to me
and the payee is Melodia Catolico, through a China Bank Check No. 892068 dated
November 9, 1989.
It clearly appears then that Catolico's dismissal was based on hearsay information. Estelita
Reyes never testified nor executed an affidavit relative to this case; thus, we have to reject the
statements attributed to her by Valdez. Hearsay evidence carries no probative value.
27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed
Co, through the former's memorandum
28
of 29 January 1990, that WATEROUS paid YSP
P3,840.00 "thru MBTC Check No. 222832," the said check was never presented in evidence, nor
was any receipt from YSP offered by petitioners.
Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an
overcharge. The purchase order dated 16 August 1989
29
stated that the Voren tablets cost
P320.00 per box, while the purchase order dated 5 October 1989
30
priced the Voren tablets at
P384.00 per bottle. The difference in price may then be attributed to the different packaging used
in each purchase order.
Assuming that there was an overcharge, the two purchase orders for the Voren tablets were
recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and
approved by Vice President-General Manager Emma R. Co. The purchase orders were silent as to
Catolico's participation in the purchase. If the price increase was objectionable to petitioners,
they or their officers should have disapproved the transaction. Consequently, petitioners had no
one to blame for their predicament but themselves. This set of facts emphasizes the exceedingly
incredible situation proposed by petitioners. Despite the memorandum warning Catolico not to
negotiate with suppliers of medicine, there was no proof that she ever transacted, or that she had
the opportunity to transact, with the said suppliers. Again, as the purchase orders indicate,
Catolico was not at all involved in the sale of the Voren tablets. There was no occasion for
119

Catolico to initiate, much less benefit from, what Valdez called an "under the table deal" with
YSP.
Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can
justify an employee's dismissal. Suspicion is not among the valid causes provided by the Labor
Code for the termination of
employment;
31
and even the dismissal of an employee for loss of trust and confidence must rest
on substantial grounds and not on the employer's arbitrariness, whims, caprices, or
suspicion.
32
Besides, Catolico was not shown to be a managerial employee, to which class of
employees the term "trust and confidence" is restricted.
33

As regards the constitutional violation upon which the NLRC anchored its decision, we find no
reason to revise the doctrine laid down in People vs. Marti
34
that the Bill of Rights does not
protect citizens from unreasonable searches and seizures perpetrated by private individuals. It is
not true, as counsel for Catolico claims, that the citizens have no recourse against such assaults.
On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and
civil liabilities.
Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would
not be to the best interest of the parties, he correctly awarded separation pay to Catolico.
Separation pay in lieu of reinstatement is computed at one month's salary for every year of
service.
35
In this case, however, Labor Arbiter Lopez computed the separation pay at one-half
month's salary for every year of service. Catolico did not oppose or raise an objection. As such,
we will uphold the award of separation pay as fixed by the Labor Arbiter.
WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and
resolution of the National Labor Relations Commission dated 30 September 1993 and 2
December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as to its
reason for upholding the Labor Arbiter's decision, viz., that the evidence against private
respondent was inadmissible for having been obtained in violation of her constitutional rights of
privacy of communication and against unreasonable searches and seizures which is hereby set
aside.
Costs against petitioners.
SO ORDERED.
Bellosillo, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.
Footnotes
1 WILLIAM FENN, More fruits of Solitude, maxim 209, in I Harvard Classics 389
(Charles W. Eliot ed., 1937).
2 Per Commissioner Rogelio I. Rayala, with Commissioners Domingo H. Zapanta
and Edna Bonto-Perez, concurring. Original Record (OR), unpaginated; Annex "A"
of Petition, Rollo, 25-36.
3 OR, 86-92; Annex "J" of Petition, Rollo, 96-102.
4. OR, unpaginated.
5 Id.
120

6 OR, 15.
7 Id., 16.
8 Id., 60.
9 Id., 17.
10 OR, 18.
11 Id., 19.
12 Id., 32.
13 Id., 20.
14 Id., 21.
15 Id., 35.
16 OR, 36.
17 Id., 2.
18 Supra note 3.
19 Supra note 2.
20 These sections pertinently provide as follows:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the Court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
21 193 SCRA 57 [1991].
22 Citing People v. Marti, supra note 21.
23 Tiu v. NLRC, 215 SCRA 540, 551 [1992].
24 Maebo v. NLRC, 229 SCRA 240, 251 [1994].
121

25 Reno Foods, Inc. v. NLRC, 249 SCRA 379, 386 [1995]; Metro Transit
Organization, Inc. v. NLRC, G.R. No. 121574, 17 October 1996, 5-6.
26 Rollo, 71-72.
27 People v. Laurente, 255 SCRA 543, 567 (1996); Batiquin v. Court of Appeals,
258 SCRA 334, 342 [1996].
28 OR, 18.
29 Annex "A" of Petitioner's Reply to Complainant's Position Paper, OR, 42.
30 Annex "B," id., id., 43.
31 See LABOR CODE, Art. 282.
32 Falguera v. Linsangan, 251 SCRA 364, 376 [1995]; De la Cruz v. NLRC, G.R.
No. 119536, 17 February 1997, 7.
33 Marina Port Services, Inc. v. NLRC, 193 SCRA 420, 425 [1991]; De la Cruz v.
NLRC, supra note 32, at 7.
34 Supra note 21.
35 Reformist Union of R.B. Liner, Inc. v. NLRC, G.R. No. 120482, 27 January
1997, 9; De la Cruz v. NLRC, supra note 31, at 8.













122

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL
BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin
1
hereinafter referred
to as Respondents-Prosecutors several judges
2
hereinafter referred to as Respondents-
Judges issued, on different dates,
3
a total of 42 search warrants against petitioners
herein
4
and/or the corporations of which they were officers,
5
directed to the any peace officer, to
search the persons above-named and/or the premises of their offices, warehouses and/or
residences, and to seize and take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers,
journals, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursements receipts, balance sheets and
profit and loss statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used
or intended to be used as the means of committing the offense," which is described in the
applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the
Constitution and the Rules of Court because, inter alia: (1) they do not describe with
particularity the documents, books and things to be seized; (2) cash money, not mentioned in the
warrants, were actually seized; (3) the warrants were issued to fish evidence against the
aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures
were made in an illegal manner; and (5) the documents, papers and cash money seized were not
delivered to the courts that issued the warrants, to be disposed of in accordance with law on
March 20, 1962, said petitioners filed with the Supreme Court this original action for certiorari,
prohibition, mandamus and injunction, and prayed that, pending final disposition of the present
case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their
agents and /or representatives from using the effects seized as aforementioned or any copies
thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision
123

be rendered quashing the contested search warrants and declaring the same null and void, and
commanding the respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and
cash moneys seized or confiscated under the search warrants in question.
In their answer, respondents-prosecutors alleged,
6
(1) that the contested search warrants are
valid and have been issued in accordance with law; (2) that the defects of said warrants, if any,
were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the
petition. However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved,
insofar as the papers, documents and things seized from the offices of the corporations above
mentioned are concerned; but, the injunction was maintained as regards the papers, documents
and things found and seized in the residences of petitioners herein.
7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices
of the aforementioned corporations, and (b) those found and seized in the residences of
petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be.
8
Indeed, it
is well settled that the legality of a seizure can be contested only by the party whose rights have
been impaired thereby,
9
and that the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties.
10
Consequently, petitioners herein may not
validly object to the use in evidence against them of the documents, papers and things seized
from the offices and premises of the corporations adverted to above, since the right to object to
the admission of said papers in evidence belongsexclusively to the corporations, to whom the
seized effects belong, and may not be invoked by the corporate officers in proceedings against
them in their individual capacity.
11
Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded,
they were the rights of the corporation and not the rights of the other defendants. Next, it
is clear that a question of the lawfulness of a seizure can be raised only by one whose
rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the
constitutional rights of defendants whose property had not been seized or the privacy of
whose homes had not been disturbed; nor could they claim for themselves the benefits of
the Fourth Amendment, when its violation, if any, was with reference to the rights
of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the
question of the admissibility of the evidence based on an alleged unlawful search and
seizure does not extend to the personal defendants but
embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros.
Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein,
the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction
previously issued by this Court,
12
thereby, in effect, restraining herein Respondents-Prosecutors
from using them in evidence against petitioners herein.
124

In connection with said documents, papers and things, two (2) important questions need be
settled, namely: (1) whether the search warrants in question, and the searches and seizures
made under the authority thereof, are valid or not, and (2) if the answer to the preceding
question is in the negative, whether said documents, papers and things may be used in evidence
against petitioners herein.1wph1.t
Petitioners maintain that the aforementioned search warrants are in the nature of general
warrants and that accordingly, the seizures effected upon the authority there of are null and
void. In this connection, the Constitution
13
provides:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue
but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set
forth in said provision; and (2) that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code)
and Revised Penal Code." In other words, nospecific offense had been alleged in said applications.
The averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against
whom it is sought has performed particular acts, or committed specific omissions, violating a
given provision of our criminal laws. As a matter of fact, the applications involved in this case do
not allege any specific acts performed by herein petitioners. It would be the legal heresy, of the
highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and Revised Penal Code," as alleged in the aforementioned
applications without reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the
most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the
domicile and the privacy of communication and correspondence at the mercy of the whims
caprice or passion of peace officers. This is precisely the evil sought to be remedied by the
constitutional provision above quoted to outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times of keen political strife, when the party in power
feels that the minority is likely to wrest it, even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court
14
by providing in its counterpart, under the Revised Rules of Court
15
that "a search
warrant shall not issue but upon probable cause in connection with one specific offense." Not
satisfied with this qualification, the Court added thereto a paragraph, directing that "no search
warrant shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants
was compounded by the description therein made of the effects to be searched for and seized, to
wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or papers
125

showing all business transactions including disbursement receipts, balance sheets and
related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights that the things to be seized be particularly described as well as tending to defeat its
major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that,
even if the searches and seizures under consideration were unconstitutional, the documents,
papers and things thus seized are admissible in evidence against petitioners herein. Upon
mature deliberation, however, we are unanimously of the opinion that the position taken in the
Moncado case must be abandoned. Said position was in line with the American common law
rule, that the criminal should not be allowed to go free merely "because the constable has
blundered,"
16
upon the theory that the constitutional prohibition against unreasonable searches
and seizures is protected by means other than the exclusion of evidence unlawfully
obtained,
17
such as the common-law action for damages against the searching officer, against
the party who procured the issuance of the search warrant and against those assisting in the
execution of an illegal search, their criminal punishment, resistance, without liability to an
unlawful seizure, and such other legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which
has been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending
official may have been protection enough; but that is true no longer. Only in case the
prosecution which itself controls the seizing officials, knows that it cannot profit by their
wrong will that wrong be repressed.
18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence against
a citizen accused of an offense, the protection of the 4th Amendment, declaring his rights
to be secure against such searches and seizures, is of no value, and, so far as those thus
placed are concerned, might as well be stricken from the Constitution. The efforts of the
courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not
to be aided by the sacrifice of those great principles established by years of endeavor and
suffering which have resulted in their embodiment in the fundamental law of the land.
19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court.
20
After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books,
are led by it to close the only courtroom door remaining open to evidence secured by
official lawlessness in flagrant abuse of that basic right, reserved to all persons as a
specific guarantee against that very same unlawful conduct. We hold that all evidence
126

obtained by searches and seizures in violation of the Constitution is, by that same
authority, inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them
by the same sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against unreasonable
federal searches and seizures would be "a form of words," valueless and underserving of
mention in a perpetual charter of inestimable human liberties, so too, without that rule
the freedom from state invasions of privacy would be so ephemeral and so neatly severed
from its conceptual nexus with the freedom from all brutish means of coercing evidence as
not to permit this Court's high regard as a freedom "implicit in the concept of ordered
liberty." At the time that the Court held in Wolf that the amendment was applicable to the
States through the Due Process Clause, the cases of this Court as we have seen, had
steadfastly held that as to federal officers the Fourth Amendment included the exclusion
of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that
proposition. The right to when conceded operatively enforceable against the States, was
not susceptible of destruction by avulsion of the sanction upon which its protection and
enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne
Cases. Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches state or federal it was logically and
constitutionally necessarily that the exclusion doctrine an essential part of the right to
privacy be also insisted upon as an essential ingredient of the right newly recognized
by the Wolf Case. In short, the admission of the new constitutional Right by Wolf could not
tolerate denial of its most important constitutional privilege, namely, the exclusion of the
evidence which an accused had been forced to give by reason of the unlawful seizure. To
hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.
Only last year the Court itself recognized that the purpose of the exclusionary rule to "is to
deter to compel respect for the constitutional guaranty in the only effectively available
way by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire system
of constitutional restraints on which the liberties of the people rest. Having once
recognized that the right to privacy embodied in the Fourth Amendment is enforceable
against the States, and that the right to be secure against rude invasions of privacy by
state officers is, therefore constitutional in origin, we can no longer permit that right to
remain an empty promise. Because it is enforceable in the same manner and to like effect
as other basic rights secured by its Due Process Clause, we can no longer permit it to be
revocable at the whim of any police officer who, in the name of law enforcement itself,
chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the
individual no more than that which the Constitution guarantees him to the police officer no
less than that to which honest law enforcement is entitled, and, to the courts, that judicial
integrity so necessary in the true administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the
applicant for a search warrant has competent evidence to establish probable cause of the
commission of a given crime by the party against whom the warrant is intended, then there is no
reason why the applicant should not comply with the requirements of the fundamental law.
Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge
to find that there is probable cause, and, hence, no justification for the issuance of the warrant.
The only possible explanation (not justification) for its issuance is the necessity
of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of
the absence of evidence to establish a probable cause.
127

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional
guarantee under consideration, overlooks the fact that violations thereof are, in general,
committed By agents of the party in power, for, certainly, those belonging to the minority could
not possibly abuse a power they do not have. Regardless of the handicap under which the
minority usually but, understandably finds itself in prosecuting agents of the majority, one
must not lose sight of the fact that the psychological and moral effect of the possibility
21
of
securing their conviction, is watered down by the pardoning power of the party for whose benefit
the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June
29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008,
Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club,
should be included among the premises considered in said Resolution as residences of herein
petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and
that, furthermore, the records, papers and other effects seized in the offices of the corporations
above referred to include personal belongings of said petitioners and other effects under their
exclusive possession and control, for the exclusion of which they have a standing under the
latest rulings of the federal courts of federal courts of the United States.
22

We note, however, that petitioners' theory, regarding their alleged possession of and control over
the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has
Been Advanced, notin their petition or amended petition herein, but in the Motion for
Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory
would appear to be readjustment of that followed in said petitions, to suit the approach
intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the
affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted
in support thereof, contain either inconsistent allegations, or allegations inconsistent with the
theory now advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed,
should we agree thereto. At any rate, we do not deem it necessary to express our opinion
thereon, it being best to leave the matter open for determination in appropriate cases in the
future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection
with the documents, papers and other effects thus seized in said residences of herein petitioners
is hereby made permanent; that the writs prayed for are granted, insofar as the documents,
papers and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied;
and that the petition herein is dismissed and the writs prayed for denied, as regards the
documents, papers and other effects seized in the twenty-nine (29) places, offices and other
premises enumerated in the same Resolution, without special pronouncement as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
CASTRO, J., concurring and dissenting:
128

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the
import of the deliberations of the Court on this case, I gather the following distinct conclusions:
1. All the search warrants served by the National Bureau of Investigation in this case are
general warrants and are therefore proscribed by, and in violation of, paragraph 3 of
section 1 of Article III (Bill of Rights) of the Constitution;
2. All the searches and seizures conducted under the authority of the said search
warrants were consequently illegal;
3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be,
and is declared, abandoned;
4. The search warrants served at the three residences of the petitioners
are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction heretofore issued
against the use of the documents, papers and effect seized in the said residences is made
permanent; and
5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated
that they have legal standing to move for the suppression of the documents, papers and
effects seized in the places other than the three residences adverted to above, the opinion
written by the Chief Justice refrains from expresslydeclaring as null and void the such
warrants served at such other places and as illegal the searches and seizures made
therein, and leaves "the matter open for determination in appropriate cases in the future."
It is precisely the position taken by the Chief Justice summarized in the immediately preceding
paragraph (numbered 5) with which I am not in accord.
I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the
search warrants served at places other than the three residences, and the illegibility of the
searches and seizures conducted under the authority thereof. In my view even the exacerbating
passions and prejudices inordinately generated by the environmental political and moral
developments of this case should not deter this Court from forthrightly laying down the law not
only for this case but as well for future cases and future generations. All the search warrants,
without exception, in this case are admittedly general, blanket and roving warrants and are
therefore admittedly and indisputably outlawed by the Constitution; and the searches and
seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumente,
have no legal standing to ask for the suppression of the papers, things and effects seized from
places other than their residences, to my mind, cannot in any manner affect, alter or otherwise
modify the intrinsic nullity of the search warrants and the intrinsic illegality of the searches and
seizures made thereunder. Whether or not the petitioners possess legal standing the said
warrants are void and remain void, and the searches and seizures were illegal and remain illegal.
No inference can be drawn from the words of the Constitution that "legal standing" or the lack of
it is a determinant of the nullity or validity of a search warrant or of the lawfulness or illegality of
a search or seizure.
On the question of legal standing, I am of the conviction that, upon the pleadings submitted to
this Court the petitioners have the requisite legal standing to move for the suppression and
return of the documents, papers and effects that were seized from places other than their family
residences.
Our constitutional provision on searches and seizures was derived almost verbatim from the
Fourth Amendment to the United States Constitution. In the many years of judicial construction
and interpretation of the said constitutional provision, our courts have invariably regarded as
129

doctrinal the pronouncement made on the Fourth Amendment by federal courts, especially the
Federal Supreme Court and the Federal Circuit Courts of Appeals.
The U.S. doctrines and pertinent cases on standing to move for the suppression or return of
documents, papers and effects which are the fruits of an unlawful search and seizure, may be
summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b)
ownership and/or control or possession actual or constructive of premises searched gives
"standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn
application for search warrant are "primarily" directed solely and exclusively against the
"aggrieved person," gives "standing."
An examination of the search warrants in this case will readily show that, excepting three, all
were directed against the petitioners personally. In some of them, the petitioners were named
personally, followed by the designation, "the President and/or General Manager" of the particular
corporation. The three warrants excepted named three corporate defendants. But the
"office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the
petitioners in all the other search warrants directed against the petitioners and/or "the President
and/or General Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of
April 2, 1962). The searches and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.
Ownership of matters seized gives "standing."
Ownership of the properties seized alone entitles the petitioners to bring a motion to return and
suppress, and gives them standing as persons aggrieved by an unlawful search and seizure
regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261
(1960) (narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States,
296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which
the defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an
apartment not belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir.
1925) (books seized from the defendant's sister but belonging to the defendant); Cf. Villano vs.
United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in
exclusive possession of the defendant).
In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held
that under the constitutional provision against unlawful searches and seizures, a person places
himself or his property within a constitutionally protected area, be it his home or his office, his
hotel room or his automobile:
Where the argument falls is in its misapprehension of the fundamental nature and scope
of Fourth Amendment protection. What the Fourth Amendment protects is the security a
man relies upon when heplaces himself or his property within a constitutionally protected
area, be it his home or his office, his hotel room or his automobile. There he is protected
from unwarranted governmental intrusion. And when he puts some thing in his filing
cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure
from an unreasonable search or an unreasonable seizure. So it was that the Fourth
Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the
purloining of the petitioner's private papers in Gouled, or the surreptitious electronic
surveilance in Silverman. Countless other cases which have come to this Court over the
years have involved a myriad of differing factual contexts in which the protections of the
Fourth Amendment have been appropriately invoked. No doubt, the future will bring
countless others. By nothing we say here do we either foresee or foreclose factual
situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct.
130

408 (December 12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November
13, 1951). (Emphasis supplied).
Control of premises searched gives "standing."
Independent of ownership or other personal interest in the records and documents seized, the
petitioners have standing to move for return and suppression by virtue of their proprietary or
leasehold interest in many of the premises searched. These proprietary and leasehold interests
have been sufficiently set forth in their motion for reconsideration and need not be recounted
here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all
the premises searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises
2008, Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the corporate
offices (IBMC, USTC); had made improvements or furnished such offices; or had paid for the
filing cabinets in which the papers were stored (Room 204, Army & Navy Club); and individually,
or through their respective spouses, owned the controlling stock of the corporations involved.
The petitioners' proprietary interest in most, if not all, of the premises searched therefore
independently gives them standing to move for the return and suppression of the books, papers
and affects seized therefrom.
In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of
the interest in the searched premises necessary to maintain a motion to suppress. After
reviewing what it considered to be the unduly technical standard of the then prevailing circuit
court decisions, the Supreme Court said (362 U.S. 266):
We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and seizures
subtle distinctions, developed and refined by the common law in evolving the body of
private property law which, more than almost any other branch of law, has been shaped
by distinctions whose validity is largely historical. Even in the area from which they
derive, due consideration has led to the discarding of those distinctions in the homeland
of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out
Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between
"lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not be
determinative in fashioning procedures ultimately referable to constitutional safeguards.
See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961).
It has never been held that a person with requisite interest in the premises searched must own
the property seized in order to have standing in a motion to return and suppress. In Alioto vs.
United States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose
apartment the corporate records were seized successfully moved for their return. In United States
vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president
successfully moved for the return and suppression is to him of both personal and corporate
documents seized from his home during the course of an illegal search:
The lawful possession by Antonelli of documents and property, "either his own or the
corporation's was entitled to protection against unreasonable search and seizure. Under
the circumstances in the case at bar, the search and seizure were unreasonable and
unlawful. The motion for the return of seized article and the suppression of the evidence
so obtained should be granted. (Emphasis supplied).
Time was when only a person who had property in interest in either the place searched or the
articles seize had the necessary standing to invoke the protection of the exclusionary rule. But
in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice
Felix Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he
131

is under against criminal intrusion." This view finally became the official view of the U.S.
Supreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years
later, in 1960, in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step
further. Jones was a mere guest in the apartment unlawfully searched but the Court nonetheless
declared that the exclusionary rule protected him as well. The concept of "person aggrieved by an
unlawful search and seizure" was enlarged to include "anyone legitimately on premise where the
search occurs."
Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth
Circuit held that the defendant organizer, sole stockholder and president of a corporation had
standing in a mail fraud prosecution against him to demand the return and suppression of
corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court
conclude that the defendant had standing on two independent grounds: First he had a
sufficient interest in the property seized, and second he had an adequate interest in the
premises searched (just like in the case at bar). A postal inspector had unlawfully searched the
corporation' premises and had seized most of the corporation's book and records. Looking
to Jones, the court observed:
Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by
an unlawful search and seizure." It tells us that appellant should not have been
precluded from objecting to the Postal Inspector's search and seizure of the corporation's
books and records merely because the appellant did not show ownership or possession of
the books and records or a substantial possessory interest in the invade premises . . .
(Henzel vs. United States, 296 F. 2d at 651). .
Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962).
In Villano, police officers seized two notebooks from a desk in the defendant's place of
employment; the defendant did not claim ownership of either; he asserted that several employees
(including himself) used the notebooks. The Court held that the employee had a protected
interest and that there also was an invasion of privacy. Both Henzel and Villanoconsidered also
the fact that the search and seizure were "directed at" the moving defendant. Henzel vs. United
States, 296 F. 2d at 682; Villano vs. United States, 310 F. 2d at 683.
In a case in which an attorney closed his law office, placed his files in storage and went to Puerto
Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as
unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand
jury subpoena duces tecum directed to the custodian of his files. The Government contended that
the petitioner had no standing because the books and papers were physically in the possession
of the custodian, and because the subpoena was directed against the custodian. The court
rejected the contention, holding that
Schwimmer legally had such possession, control and unrelinquished personal rights in
the books and papers as not to enable the question of unreasonable search and seizure to
be escaped through the mere procedural device of compelling a third-party naked
possessor to produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861
(8th Cir. 1956).
Aggrieved person doctrine where the search warrant s primarily directed against said person
gives "standing."
The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191
(1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers,
which attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell's
attorney. * Dunn, in turn, had stored most of the records at his home in the country and on a
farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management."
132

The papers turned out to be private, personal and business papers together with corporate books
and records of certain unnamed corporations in which Birrell did not even claim ownership. (All
of these type records were seized in the case at bar). Nevertheless, the search in Birrell was held
invalid by the court which held that even though Birrell did not own the premises where the
records were stored, he had "standing" to move for the return of all the papers and properties
seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp.
870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed out that
It is overwhelmingly established that the searches here in question were directed solely
and exclusively against Birrell. The only person suggested in the papers as having
violated the law was Birrell. The first search warrant described the records as having
been used "in committing a violation of Title 18, United States Code, Section 1341, by the
use of the mails by one Lowell M. Birrell, . . ." The second search warrant was captioned:
"United States of America vs. Lowell M. Birrell. (p. 198)
Possession (actual or constructive), no less than ownership, gives standing to move to
suppress. Such was the rule even before Jones. (p. 199)
If, as thus indicated Birrell had at least constructive possession of the records stored with
Dunn, it matters not whether he had any interest in the premises searched. See
also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432
U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).
The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not
appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the
present petitioners; as in Birrell, many personal and corporate papers were seized from premises
not petitioners' family residences; as in Birrell, the searches were "PRIMARILY DIRECTED
SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents were
suppressed in Birrell because of the illegal search. In the case at bar, the petitioners connection
with the premises raided is much closer than in Birrell.
Thus, the petitioners have full standing to move for the quashing of all the warrants regardless
whether these were directed against residences in the narrow sense of the word, as long as the
documents were personal papers of the petitioners or (to the extent that they were corporate
papers) were held by them in a personal capacity or under their personal control.
Prescinding a from the foregoing, this Court, at all events, should order the return to the
petitioners all personaland private papers and effects seized, no matter where these were seized,
whether from their residences or corporate offices or any other place or places.
The uncontradicted sworn statements of the petitioners in their, various pleadings submitted to
this Court indisputably show that amongst the things seized from the corporate offices and other
places were personal and private papers and effects belonging to the petitioners.
If there should be any categorization of the documents, papers and things which where the
objects of the unlawful searches and seizures, I submit that the grouping should be:
(a) personal or private papers of the petitioners were they were unlawfully seized, be it their
family residences offices, warehouses and/or premises owned and/or possessed (actually or
constructively) by them as shown in all the search and in the sworn applications filed in securing
the void search warrants and (b) purely corporate papers belonging to corporations. Under such
categorization or grouping, the determination of which unlawfully seized papers, documents and
things arepersonal/private of the petitioners or purely corporate papers will have to be left to the
lower courts which issued the void search warrants in ultimately effecting the suppression
and/or return of the said documents.
133

And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear
legal standing to move for the suppression of purely corporate papers as "President and/or
General Manager" of the corporations involved as specifically mentioned in the void search
warrants.
Finally, I must articulate my persuasion that although the cases cited in my disquisition were
criminal prosecutions, the great clauses of the constitutional proscription on illegal searches and
seizures do not withhold the mantle of their protection from cases not criminal in origin or
nature.
Footnotes
1
Hon. Jose W. Diokno, in his capacity as Secretary of Justice, Jose Lukban, in his
capacity as Acting Director, National Bureau of Investigation, Special Prosecutors Pedro
D. Cenzon, Efren I. Plana and Manuel Villareal, Jr. and Assistant Fiscal Maneses G.
Reyes, City of Manila.
2
Hon. Amado Roan, Judge of the Municipal (now City) Court of Manila, Hon. Roman
Cansino, Judge of the Municipal (now City) Court of Manila, Hon. Hermogenes Caluag,
Judge of the Court of First Instance of Rizal, Quezon City Branch, Hon. Eulogio Mencias,
Judge of the Court of First Instance of Rizal, Pasig Branch, and Hon. Damian Jimenez,
Judge of the Municipal (now City) Court of Quezon City.
3
Covering the period from March 3 to March 9, 1962.
4
Harry S. Stonehill, Robert P. Brooks, John J. Brooks and Karl Beck.
5
U.S. Tobacco Corporation, Atlas Cement Corporation, Atlas Development Corporation,
Far East Publishing Corporation (Evening News), Investment Inc., Industrial Business
Management Corporation, General Agricultural Corporation, American Asiatic Oil
Corporation, Investment Management Corporation, Holiday Hills, Inc., Republic Glass
Corporation, Industrial and Business Management Corporation, United Housing
Corporation, The Philippine Tobacco-Flue-Curing and Redrying Corporation, Republic
Real Estate Corporation and Merconsel Corporation.
6
Inter alia.
7
"Without prejudice to explaining the reasons for this order in the decision to be rendered
in the case, the writ of preliminary injunction issued by us in this case against the use of
the papers, documents and things from the following premises: (1) The office of the U.S.
Tobacco Corp. at the Ledesma Bldg., Arzobispo St., Manila; (2) 932 Gonzales, Ermita,
Manila; (3) office at Atlanta St. bounded by Chicago, 15th & 14th Sts., Port Area, Manila;
(4) 527 Rosario St., Mla.; (5) Atlas Cement Corp. and/or Atlas Development Corp.,
Magsaysay Bldg., San Luis, Ermita, Mla.; (6) 205 13th St., Port Area, Mla.; (7) No. 224
San Vicente St., Mla.; (8) Warehouse No. 2 at Chicago & 23rd Sts., Mla.; (9) Warehouse at
23rd St., between Muelle de San Francisco & Boston, Port Area, Mla.; (10) Investment
Inc., 24th St. & Boston; (11) IBMC, Magsaysay Bldg., San Luis, Mla.; (12) General
Agricultural Corp., Magsaysay Bldg., San Luis, Manila; (13) American Asiatic Oil Corp.,
Magsaysay Bldg., San Luis, Manila; (14) Room 91, Carmen Apts.; Dewey Blvd., Manila;
(15) Warehouse Railroad St. between 17 & 12 Sts., Port Area, Manila; (16) Rm. 304, Army
& Navy Club, Manila, South Blvd.; (17) Warehouse Annex Bldg., 18th St., Port Area,
Manila; (18) Rm. 81 Carmen Apts.; Dewey Blvd., Manila; (19) Holiday Hills, Inc., Trinity
Bldg., San Luis, Manila; (20) No. 2008 Dewey Blvd.; (21) Premises of 24th St. & Boston,
Port Area, Manila; (22) Republic Glass Corp., Trinity Bldg., San Luis, Manila; (23) IBMC,
2nd Floor, Trinity Bldg., San Luis, Manila; (24) IBMC, 2nd Flr., Gochangco Blg., 610 San
134

Luis, Manila; (25) United Housing Corp., Trinity Bldg., San Luis, Manila; (26) Republic
Real Estate Corp., Trinity Bldg., San Luis, Manila; (27) 1437 Colorado St., Malate, Manila;
(28) Phil. Tobacco Flue-Curing, Magsaysay Bldg., San Luis, Manila and (29) 14 Baldwin
St., Sta. Cruz, Manila, in the hearing of Deportation Cases Nos. R-953 and 955 against
petitioners, before the Deportation Board, is hereby lifted. The preliminary injunction
shall continue as to the papers, documents and things found in the other premises
namely: in those of the residences of petitioners, as follows: (1) 13 Narra Road, Forbes
Park, Makati, Rizal; (2) 15 Narra Road, Forbes Park, Makati, Rizal; and (3) 8 Urdaneta
Avenue, Urdaneta Village, Makati, Rizal."
8
Newingham, et al. vs. United States, 4 F. 2d. 490.
9
Lesis vs. U.S., 6 F. 2d. 22.
10
In re Dooley (1931) 48 F 2d. 121; Rouda vs. U.S., 10 F. 60 2d 916; Lusco vs. U.S. 287 F.
69; Ganci vs. U.S., 287 F. Moris vs. U.S., 26 F. 2d 444.
11
U.S. vs. Gass 17 F. 2d. 997; People vs. Rubio, 57 Phil. 384, 394.
12
On March 22, 1962.
13
Section 1, paragraph 3, of Article III thereof.
14
Reading: . . . A search warrant shall not issue but upon probable cause to be
determined by the judge or justice of the peace after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
15
. . . A search warrant shall not issue but upon probable cause in connection with one
specific offense to be determined by the judge or justice of the peace after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and persons or things to be seized.
No search warrant shall issue for more than one specific offense. (Sec. 3, Rule 126.)
16
People vs. Defore, 140 NE 585.
17
Wolf vs. Colorado, 93 L. ed. 1782.
18
Pugliese (1945) 133 F. 2d. 497.
19
Weeks vs. United States (1914) 232 U.S. 383, 58 L. ed. 652, 34 S. Ct. 341; emphasis
supplied.
20
Gouled vs. United States (1921) 255 US 298, 65 L. ed, 647, 41 S. Ct. 261; Olmstead vs.
United States (1928) 277 US 438, 72 L. ed. 944, 48 S. Ct. 564, Wolf vs. Colorado, 338 US
25, 93 L. ed. 1782, 69 S. Ct. 1359; Elkins vs. United States, 364 US 206, 4 L. ed. 2d.
1669, 80 S. Ct. 1437 (1960); Mapp vs. Ohio (1961), 367 US 643, 6 L. ed. 2d. 1081, 81 S.
Ct. 1684.
21
Even if remote.
135

22
Particularly, Jones vs. U.S. 362 U.S. 257; Alioto vs. U.S., 216 Fed. Supp. 49: U.S. vs.
Jeffries, 72 S. Ct. 93: Villano vs, U.S., 300 Fed. 2d 680; and Henzel vs. U.S., 296 Fed. 2d
650.
CASTRO, J., CONCURRING AND DISSENTING:
*
Attorney-client relationship played no part in the decision of the case.
























136

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC., petitioners,
vs.

THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE
JUDGE ADVOCATE GENERAL, ET AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo,
Jejomar Binay and Rene Saguisag for petitioners.
The Solicitor General for respondents.

ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory
and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982
by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of
Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City,
and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the
"Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and
printing machines, equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as numerous papers,
documents, books and other written literature alleged to be in the possession and control of
petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be
issued for the return of the seized articles, and that respondents, "particularly the Chief Legal
Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of
Quezon City, their representatives, assistants, subalterns, subordinates, substitute or
successors" be enjoined from using the articles thus seized as evidence against petitioner Jose
Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of
Quezon City, entitled People v. Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the petition. The
plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983,
later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ
of preliminary mandatory injunction, manifested that respondents "will not use the
aforementioned articles as evidence in the aforementioned case until final resolution of the
137

legality of the seizure of the aforementioned articles. ..."
2
With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that petitioners had come
to this Court without having previously sought the quashal of the search warrants before
respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this
Court, should have filed a motion to quash said warrants in the court that issued them.
3
But
this procedural flaw notwithstanding, we take cognizance of this petition in view of the
seriousness and urgency of the constitutional issues raised not to mention the public interest
generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely
publicized in all metropolitan dailies. The existence of this special circumstance justifies this
Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice
Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo,
4
"it is always in the power of the
court [Supreme Court] to suspend its rules or to except a particular case from its operation,
whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is
laid on the fact that while said search warrants were issued on December 7, 1982, the instant
petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of
more than six [6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time to do that
which, by exercising due diligence, could or should have been done earlier. It is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party
entitled to assert it either has abandoned it or declined to assert it.
5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the
petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the Petition was filed on June 16, 1983, more
than half a year after the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had waited
this long to bring their case to court, it was because they tried at first to exhaust
other remedies. The events of the past eleven fill years had taught them that
everything in this country, from release of public funds to release of detained
persons from custody, has become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close to the
President, like Fiscal Flaminiano, sent a letter to President Marcos, through
counsel Antonio Coronet asking the return at least of the printing equipment and
vehicles. And after such a letter had been sent, through Col. Balbino V. Diego,
Chief Intelligence and Legal Officer of the Presidential Security Command, they
were further encouraged to hope that the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to come to
Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial system, We find no
ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial
efforts exerted by petitioners quite evidently negate the presumption that they had abandoned
their right to the possession of the seized property, thereby refuting the charge of laches against
them.
138

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked
as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped
from challenging the validity of the search warrants. We do not follow the logic of respondents.
These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he
pleases with them, within legal bounds. The fact that he has used them as evidence does not and
cannot in any way affect the validity or invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath
or affirmation of the applicant and his witnesses, as mandated by the above-quoted
constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court .
6
This objection,
however, may properly be considered moot and academic, as petitioners themselves conceded
during the hearing on August 9, 1983, that an examination had indeed been conducted by
respondent judge of Col. Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No.
19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon
City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the
latter address on the ground that the two search warrants pinpointed only one place where
petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e.,
No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant
No. 20- 82[b] which states:
Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended and he
is keeping and concealing the same at 19 Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It
would be quite absurd and illogical for respondent judge to have issued two warrants intended
for one and the same place. Besides, the addresses of the places sought to be searched were
specifically set forth in the application, and since it was Col. Abadilla himself who headed the
team which executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which Search
Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue,
Quezon City, which address appeared in the opening paragraph of the said warrant.
7
Obviously
this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held "that the executing officer's prior knowledge as to the
place intended in the warrant is relevant. This would seem to be especially true where the
executing officer is the affiant on whose affidavit the warrant had issued, and when he knows
that the judge who issued the warrant intended the building described in the affidavit, And it has
also been said that the executing officer may look to the affidavit in the official court file to
resolve an ambiguity in the warrant as to the place to be searched."
8

3. Another ground relied upon to annul the search warrants is the fact that although the
warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners
Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized
under a search warrant, to wit:
139

Sec. 2. Personal Property to be seized. A search warrant may be issued for the
search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the
offense; and
[c] Property used or intended to be used as the means of
committing an offense.
The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has
control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was
alleged to have in relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized under the
disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery,
receptables, instruments or implements intended by the owner of the tenement for an industry
or works which may be carried on in a building or on a piece of land and which tend directly to
meet the needs of the said industry or works" are considered immovable property. In Davao
Sawmill Co. v. Castillo
9
where this legal provision was invoked, this Court ruled that machinery
which is movable by nature becomes immobilized when placed by the owner of the tenement,
property or plant, but not so when placed by a tenant, usufructuary, or any other person having
only a temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or building on which
the machineries were placed. This being the case, the machineries in question, while in fact
bolted to the ground remain movable property susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom.
10
The application was
accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of
the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the search warrants on
December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly
issue in accordance with Section 3, Article IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such
facts and circumstances which would lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the objects sought in connection with the offense are in
the place sought to be searched. And when the search warrant applied for is directed against a
140

newspaper publisher or editor in connection with the publication of subversive materials, as in
the case at bar, the application and/or its supporting affidavits must contain a specification,
stating with particularity the alleged subversive material he has published or is intending to
publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's
application that petitioner "is in possession or has in his control printing equipment and other
paraphernalia, news publications and other documents which were used and are all
continuously being used as a means of committing the offense of subversion punishable under
Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a finding of the
existence of probable cause, said allegation cannot serve as basis for the issuance of a search
warrant and it was a grave error for respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the statement contained
in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered
and collated by our unit clearly shows that the premises above- mentioned and the articles and
things above-described were used and are continuously being used for subversive activities in
conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire
Movement, Movement for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, ... after examination under oath or affirmation of the complainant and the witnesses he
may produce; 14 the Constitution requires no less than personal knowledge by the complainant
or his witnesses of the facts upon which the issuance of a search warrant may be justified.
In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of probable cause." As couched, the
quoted averment in said joint affidavit filed before respondent judge hardly meets the test of
sufficiency established by this Court in Alvarez case.
Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe the
articles sought to be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment,
typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of the
"WE FORUM" newspaper and any and all documents communication, letters and
facsimile of prints related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication to
promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement;
and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and
other subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
141

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with
marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme
Court for being too general. In like manner, directions to "seize any evidence in connectionwith
the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a
search warrant which authorized the seizure of any "paraphernalia which could be used to
violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the
articles sought to be seized under the search warrants in question cannot be characterized
differently.
In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history:
the era of disaccord between the Tudor Government and the English Press, when "Officers of the
Crown were given roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan Reference herein to such historical
episode would not be relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security.
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure,
these premises were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently anathematic to a
democratic framework where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
Respondents would justify the continued sealing of the printing machines on the ground that
they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary of National Defense."
It is doubtful however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for sequestration
of the WE FORUM newspaper and its printing presses, according to Information
Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in
the premises.
Cendaa said that because of the denial the newspaper and its equipment remain
at the disposal of the owners, subject to the discretion of the court. 19
142

That the property seized on December 7, 1982 had not been sequestered is further confirmed by
the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S.
Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE
FORUM " case.
20
In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation of our
authorities to close the paper's printing facilities and confiscate the equipment
and materials it uses.
21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set
aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby
granted and all articles seized thereunder are hereby ordered released to petitioners. No costs.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez,
Jr., De la Fuente and Cuevas, JJ., concur.
Aquino, J., took no part.
Separate Opinions
ABAD SANTOS, J., concurring
I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish
to state my own reasons for holding that the search warrants which are the subject of the
petition are utterly void.
The action against "WE FORUM" was a naked suppression of press freedom for the search
warrants were issued in gross violation of the Constitution.
The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points,
namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge
in the manner set forth in said provision; and (2) that the warrant shall particularly describe the
things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)
Any search warrant is conducted in disregard of the points mentioned above will result in wiping
"out completely one of the most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)
The two search warrants were issued without probable cause. To satisfy the requirement of
probable cause a specific offense must be alleged in the application; abstract averments will not
suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the
claim that certain objects were being used as instruments and means of committing the offense
of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific
provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of
the highest order, to convict anybody" of violating the decree without reference to any
determinate provision thereof.
The search warrants are also void for lack of particularity. Both search warrants authorize Col.
Rolando Abadilla to seize and take possession, among other things, of the following:
143

Subversive documents, pamphlets, leaflets, books and other publication to
promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.
The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive?
What did they contain to make them subversive? There is nothing in the applications nor in the
warrants which answers the questions. I must, therefore, conclude that the warrants are general
warrants which are obnoxious to the Constitution.
In point of fact, there was nothing subversive published in the WE FORUM just as there is
nothing subversive which has been published in MALAYA which has replaced the former and has
the same content but against which no action has been taken.
Conformably with existing jurisprudence everything seized pursuant to the warrants should be
returned to the owners and all of the items are subject to the exclusionary rule of evidence.
Teehankee, J., concur.
Separate Opinions
ABAD SANTOS, J., concurring
I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish
to state my own reasons for holding that the search warrants which are the subject of the
petition are utterly void.
The action against "WE FORUM" was a naked suppression of press freedom for the search
warrants were issued in gross violation of the Constitution.
The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points,
namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge
in the manner set forth in said provision; and (2) that the warrant shall particularly describe the
things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)
Any search warrant is conducted in disregard of the points mentioned above will result in wiping
"out completely one of the most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)
The two search warrants were issued without probable cause. To satisfy the requirement of
probable cause a specific offense must be alleged in the application; abstract averments will not
suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the
claim that certain objects were being used as instruments and means of committing the offense
of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific
provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of
the highest order, to convict anybody" of violating the decree without reference to any
determinate provision thereof.
The search warrants are also void for lack of particularity. Both search warrants authorize Col.
Rolando Abadilla to seize and take possession, among other things, of the following:
Subversive documents, pamphlets, leaflets, books and other publication to
promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.
144

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive?
What did they contain to make them subversive? There is nothing in the applications nor in the
warrants which answers the questions. I must, therefore, conclude that the warrants are general
warrants which are obnoxious to the Constitution.
In point of fact, there was nothing subversive published in the WE FORUM just as there is
nothing subversive which has been published in MALAYA which has replaced the former and has
the same content but against which no action has been taken.
Conformably with existing jurisprudence everything seized pursuant to the warrants should be
returned to the owners and all of the items are subject to the exclusionary rule of evidence.
Teehankee, J., concur.
Footnotes
1 Petition, P. 44, Rollo.
2 Manifestation and Opposition, p. 75, Rollo.
3 Templo v. Dela Cruz, 60 SCRA 295.
4 463 Phil. 275.
5 Tijam v. Sibonghanoy, 23 SCRA 29.
6 Sec. 4, Rule 126, Rules of Court provides:
Sec. 4. Examination of the Applicant. The municipal or city judge must, before
issuing the warrant, personally examine on oath or affirmation the complainant
and any witnesses he may produce and take their deposition in writing and attach
them to the record, in addition to any affidavits presented to them.
7 The opening paragraph of Search Warrant No. 20- 82 [b] reads:
"It appearing to the satisfaction of the undersigned after examination under oath
of Maj. Alejandro M. Gutierrez and Lt. Pedro U. Tango, that there are good and
sufficient reason to believe that Jose Burgos, Jr. Publisher-Editor of "WE FORUM"
with office address at 784 Units C & D, RMS Building, Quezon Avenue, Quezon
City, has in his possession and control at said address the following; ... :
8 68 Am. Jur. 2d., 729.
9 61 Phil. 709. Annex "C", Petition, pp. 51-52,
10 Rollo.
11 Annex "B", Petition, pp. 53-54, Rollo.
12 Annex "C", Petition, p. 51, Rollo.
13 Annex "D", Petition, p. 54, Rollo.
145

14 Sec. 3, Art. IV, 1973 Constitution.
15 64 Phil. 33.
18 Sec. 9. Art. IV of the Constitution
19 Annex "K", Consolidated Reply, p. 175, Rollo.
20 Annex "L", Consolidated Reply, p. 178, Rollo.
21 Annex "M", Consolidated Reply, p. 179, Rollo.



















146

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 89103 July 14, 1995
LEON TAMBASEN, petitioner,
vs.

PEOPLE OF THE PHILIPPINES, 2ND ASSISTANT PROVINCIAL PROSECUTOR GLORIA
LASTIMOSA MARCOS and HON. CICERO U. QUERUBIN in his capacity as Presiding Judge
of the Regional Trial Court of Negros Occidental, Branch 44, Bacolod City, respondents.

QUIASON, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set
aside the Order dated July 20, 1989 of the Regional Trial Court (RTC), Branch 44, Bacolod City
in Civil Case No. 5331, which nullified the order earlier issued by the Municipal Trial Circuit
Court (MTCC) of the City of Bacolod. The MTCC Order directed the return to petitioner of the
amount of P14,000.00 which had been seized by the police.
I
On August 31, 1988, P/Sgt. Flumar Natuel applied for the issuance of a search warrant from the
MTCC, alleging that he received information that petitioner had in his possession at his house at
the North Capitol Road, Bacolod City, "M-16 Armalite Rifles (Mags & Ammos), Hand Grenades,
.45 Cal. Pistols (Mags & Ammos), Dynamite Sticks and Subversive Documents," which articles
were "used or intended to be used" for illegal purposes (Rollo, p. 14). On the same day, the
application was granted by the MTCC with the issuance of Search Warrant No. 365, which
allowed the seizure of the items specified in the application (Rollo, p. 15).
At around 6:30 P.M. of September 9, 1988, a police team searched the house of petitioner and
seized the following articles:
(1) Two (2) envelopes containing cash in the total amount of P14,000.00 (one
envelope P10,000.00 and another P4,000.00);
(2) one (1) AR 280 handset w/antenae (sic) SN-00485;
(3) one (1) YAESU FM Transceiver FT 23R w/Antenae (sic);
(4) one (1) ALINCO ELH 230D Base;
(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMP 128 VAC;
147

(6) one (1) brown Academy Notebook & Assorted papers; and
(7) Four (4) handsets battery pack (Rollo, p. 16).
On September 19, 1988, the MTCC, acting on petitioner's urgent motion for the return of the
seized articles, issued an order directing Sgt. Natuel to make a return of the search warrant. The
following day, Sgt. Natuel submitted a report to the court. Not considering the report as a "return
in contemplation of law," petitioner filed another motion praying that Sgt. Natuel be required to
submit a complete and verified inventory of the seized articles. Thereafter, Sgt. Natuel manifested
that although he was the applicant for the issuance of the search warrant, he was not present
when it was served.
On October 7, 1988, petitioner filed before the MTCC a motion praying that the search and
seizure be declared illegal and that the seized articles be returned to him. In his answer to the
motion, Lt. Col. Nicolas Torres, the station commander of the Bacolod City Police, said that the
amount of P14,000.00 had been earmarked for the payment of the allowance of the Armed City
Partisan (ACP) and other "known NPA personalities" operating in the City of Bacolod.
On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres to return the money
seized to petitioner. The court opined that in the implementation of the search warrant, any
seizure should be limited to the specific items covered thereby. It said that the money could not
be considered as "subversive documents"; it was neither stolen nor the effects of gambling.
Three months later, the Solicitor General filed before the RTC, Branch 44, Bacolod City a petition
for certiorari seeking the annulment of the order of the MTCC (Civil Case No. 5331). The petition
alleged that assuming that the seizure of the money had been invalid, petitioner was not entitled
to its return citing the rulings in Alih v. Castro, 151 SCRA 279 (1987) and Roan v. Gonzales, 145
SCRA 687 (1986). In those cases, the Court held that pending the determination of the legality of
the seizure of the articles, they should remain in custodia legis. The petition also averred that a
criminal complaint for "any of the crimes against public order as provided under Chapter I, Title
III of the Revised Penal Code" had been filed with the City Fiscal (BC I.S. No. 88-1239) and
therefore, should the money be found as having been earmarked for subversive activities, it
should be confiscated pursuant to Article 45 of the Revised Penal Code.
On July 20, 1989, RTC, Branch 44 issued an order granting the petition for certiorari and
directing the clerk of court to return to the MTCC the money pending the resolution of the
preliminary investigation being conducted by the city prosecutor on the criminal complaint. In
said order, the RTC held:
The Court observed that private respondent Leon Tambasen never questioned the
validity of the search warrant issued by respondent Judge Demosthenes L.
Magallanes. A perusal of private respondent's "Motion to Declare Search and
Seizure Illegal and to Return Seized Properties" dated October 7, 1988 shows that
respondent Tambasen questions not the validity of the search warrant issued by
respondent Judge Demosthenes Magallanes, but rather, the execution or
implementation of the said warrant principally on the ground that the articles
seized are not allegedly mentioned in the search warrant. However, the question
thus raised involves matters determinative of the admissibility in evidence and the
legality of the articles seized. These matters, it is submitted, go beyond the
immediate and limited jurisdiction of the respondent Judge to inquire into the
validity of the search warrant he issued. These issues which relate exclusively or
principally with the intrinsic and substantive merits of the case or cases which are
being prepared against respondent Tambasen, and insofar as Tambasen is
concerned involve matters of defense which should be properly raised at the
criminal action or actions that may be filed against respondent Leon Tambasen
148

(see DOH v. Sy Chi Siong Co., Inc. et. al., G.R. No. 85289, Feb. 20, 1989). They
cannot be addressed to the respondent Judge because the respondent Judge has
no jurisdiction over the said issue. It is clear therefore that respondent Judge has
transcended the boundaries of his limited jurisdiction and had in effect
encroached upon the jurisdiction of the appropriate trial court or courts that will
try the criminal case or cases against respondent Leon Tambasen, in issuing the
assailed order dated December 23, 1988. Ostensibly, the assailed order, if not
corrected, will unduly deprive the prosecution of its right to present the evidence
in question and, consequently, will improperly oust the trial court, which will try
the criminal case or cases against private respondent Leon Tambasen of its
original and exclusive jurisdiction to rule on the admissibility and legality of the
said evidence. This order of respondent court is tantamount to a denial of due
process. It may be considered as a grave abuse of discretion reviewable
by certiorari (Esparagoza v. Tan, 94 Phil. 749) (Rollo, pp. 47-48).
Consequently, petitioner filed the instant petition for certiorari and prohibition praying for the
issuance of a temporary restraining order commanding the city prosecutor to cease and desist
from continuing with the preliminary investigation in BC I.S. No. 88-1239 and the RTC from
taking any step with respect to Civil Case No. 5331. He also prayed that Search Warrant No. 365
and the seizure of his personal effects be declared illegal and that the Order of July 20, 1989 be
reversed and annulled.
Petitioner contended that the search warrant covered three offenses: "(1) illegal possession of
armalite rifle and .45 cal. pistol; (2) illegal possession of hand grenade and dynamite sticks; and
(3) illegal possession of subversive documents" (Rollo, pp. 3-4) in violation of Section 3 of Rule
126 of the Revised Rules of Court. He assailed the legality of the seizure of the articles which
were not mentioned in the search warrant. Moreover, since a complaint against him was filed
only after his house had been searched, petitioner claimed that the police were "on a fishing
expedition."
During the pendency of the instant petition, a series of events related to the questioned search
and seizure transpired. At around 10:30 P.M. of March 1, 1990, petitioner, who was then on
board a passenger vehicle, was arrested by intelligence operatives in Barangay Mandalagan,
Bacolod City and forthwith detained. On the strength of sworn statements of two rebel returnees,
the police filed a complaint for subversion against petitioner with the Office of the City
Prosecutor. The following day, the City Prosecutor filed an information for violation of the Anti-
Subversion Law against petitioner with RTC, Branch 42, Bacolod City (Criminal Case No. 8517).
An order for the arrest of petitioner was issued on March 2, 1990.
On March 6, 1990, petitioner filed a motion to quash the information in Criminal Case No. 8517.
On March 15, 1990, RTC, Branch 42 granted petitioner's motion to quash and recalled the
warrant of arrest. The court also directed the City Prosecutor to resolve BC-I.S. Case No. 88-
1239.
On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa Marcos manifested before
RTC, Branch 42 that petitioner had been "dropped" from BC-I.S. No. 88-1239. However, the City
Prosecutor had, by then, filed a motion for the reconsideration of said Resolution of March 15,
1990. The motion was denied.
Under this factual matrix, this Court is confronted with the question of whether RTC, Branch 44
gravely abused its discretion in directing that the money seized from petitioner's house,
specifically the amount of P14,000.00, be retained and kept in custodia legis.
149

On its face, the search warrant violates Section 3, Rule 126 of the Revised Rules of Court, which prohibits
the issuance of a search warrant for more than one specific offense. The caption of Search Warrant No. 365
reflects the violation of two special laws: P.D. No. 1866 for illegal possession of firearms, ammunition and
explosives; and R.A. No. 1700, the Anti-Subversion Law. Search Warrant No. 365 was therefore a "scatter-
shot warrant" and totally null and void (People v. Court of Appeals, 216 SCRA 101 [1992]).
Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the
parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution
requires that a search warrant should particularly describe the things to be seized. "The evident purpose
and intent of the requirement is to limit the things to be seized to those, and only those, particularly
described in the search warrant to leave the officers of the law with no discretion regarding what articles
they should seize, to the end that unreasonable searches and seizures may not be made and that abuses
may not be committed" (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.] Inc. v. Ruiz, 37
SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also
aimed at preventing violations of security in person and property and unlawful invasions of the sanctity of
the home, and giving remedy against such usurpations when attempted (People v. Damaso, 212 SCRA 547
[1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).
Clearly then, the money which was not indicated in the search warrant, had been illegally seized from
petitioner. The fact that the members of the police team were doing their task of pursuing subversives is not
a valid excuse for the illegal seizure. The presumption juris tantum of regularity in the performance of official
duty cannot by itself prevail against the constitutionally protected rights of an individual (People v. Cruz,
231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare is the foundation
of the power to search and seize, such power must be exercised and the law enforced without transgressing
the constitutional rights of the citizens (People v. Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil.
230, 235 [1937]). As the Court aptly puts it in Bagalihog v. Fernandez, 198 SCRA 614 (1991), "[z]eal in the
pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors."
For the retention of the money seized by the police officers, approval of the court which issued the search
warrant is necessary (People v. Gesmundo, 219 SCRA 743 [1993]). In like manner, only the court which
issued the search warrant may order their release (Temple v. Dela Cruz, 60 SCRA 295 [1974]; Pagkalinawan
v. Gomez, 21 SCRA 1275 [1967]).
Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained in violation of the right
against unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding.
The information in Criminal Case No. 8517, with petitioner as the sole accused, was ordered quashed by
the trial court and the prosecution's motion for the reconsideration of the quashal order had been denied.
Even in BC I.S. Case No. 88-1239, which was being investigated by Assistant Provincial Prosecutor Marcos,
petitioner was dropped as a respondent. Hence, there appears to be no criminal prosecution which can
justify the retention of the seized articles in custodia legis.
A subsequent legal development added another reason for the return to him of all the seized articles: R.A.
No. 1700, the Anti-Subversion Law, was repealed by R.A. No. 7636 and, therefore, the crimes defined in the
repealed law no longer exist.
WHEREFORE, the petition is GRANTED and the People of the Philippines is ORDERED to RETURN the
money seized to petitioner.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo, and Kapunan, JJ., concur.


150

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-60349-62 December 29, 1983
CITY FISCAL NESTORIO M. PLACER, ASST. CITY FISCALS AGELIO L. BRINGAS, ERNESTO
M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L. GUIRITAN, MACARIO B. BALANSAG and
ROSARIO F. DABALOS, all of Butuan City, and the PEOPLE OF THE
PHILIPPINES, petitioners,
vs.
HON. JUDGE NAPOLEON D. VILLANUEVA, in his capacity as City Judge of
Butuan, respondent.
The Solicitor General for respondent.

ESCOLIN, J.:
The legal question raised in this petition is whether the certification of the investigating fiscal in
the information as to the existence of probable cause obligates respondent City Judge to issue a
warrant of arrest.
The antecedent facts are not disputed. During the period from March 30 to April 14, 1982,
petitioners, The City Fiscal of Butuan City and his assistants filed in the City Court of Butuan
the following informations, to wit:
CRIMINALCASE
NO.
TITLE
1220 People vs,
Jimmy Tan
Slight Phy.
Inj.
12210 People vs.
Carlito
Fortun
Violation
of P.D.
1306
12211 People vs.
Jarail
Majini
-do-
12212 People vs.
Amelita Dy
Violation.
of B.P. 22
12213 People vs.
Angelito
Dy
-do-
12214 People vs.
Jesus
Aloyan
Estafa
151

12215 People vs,
Bebot
Lauron
Mal.
Mischief
12216 People vs.
Mariano
Trani
Usurption
of
authority
Antonio
Monghit
authority
12217 People vs.
EIorde
Subingbing
Alarm &
Scandal
Fernando
Sagay

12218 People vs.
Perla
Trasga
Grave oral
defamation
12219 People vs.
Renato
Dayan
Estafa
12220 People vs.
Edgardo
Dayan
Estafa
12221 People vs.
Benito Sy
Ibaez
Estafa
12222 People vs.
Benito Sy
Ibaez
-do-
These informations, except the last four, docketed as Criminal Cases Nos. 12219 12220, 12221.
and '2222, were certified to by the respective investigating Fiscals as Follows: "that a preliminary
examination has been conducted by me in this case, having examined 'the complainant and his
witnesses; that on the basis of the sworn statements, and other evidence submitted before this
Official there is reasonable ground to believe that the crime charged has been committed and
that herein accused is probably guilty thereof " The informations in Criminal Cases Nos. 12219
and 12220 bore the certification of 3rd Assistant Fiscal Felixberto Guiritan that I am filing this
information upon directive of the Minister of Justice, who upon review of this resolution of the
undersigned investigating fiscal has found prima facie case against herein accused,
1
while the
informations in Criminal Cases Nos. 12221 and 12222 were certified to by 2nd Assistant Fiscal
Ernesto M. Brocoy in this wise: "I am filing this information upon directive of the City Fiscal
pursuant to the provisions of P.D. No. 911, who, upon review of the resolution of the
investigating fiscal now on temporary detail with the office of the Provincial Fiscal of Surigao del
Sur, has found prima facie case against the herein accused."
2

Following receipt of said informations, respondent judge issued an order setting on April 5, 1982
the hearing of said criminal cases for the purpose of determining the propriety of issuing the
corresponding warrants of arrest. After said hearing, respondent issued the questioned orders
152

dated April 13, 15, 16 and 19, 1982, requiring petitioners to submit to the court the affidavits of
the prosecution witnesses and other documentary evidence in support of the informations to aid
him in the exercise of his power of judicial review of the findings of probable cause by
petitioners.
3

Petitioners filed two separate motions for reconsideration of said orders, contending that under
P.D. Nos. 77 and 911, they are authorized to determine the existence of a probable cause in a
preliminary examination/investigation, and that their findings as to the existence thereof
constitute sufficient basis for the issuance of warrants of arrest by the court.
4
On April 28,
1982, respondent judge denied said motions and reiterated his order to petitioners to submit the
supporting affidavits and other documents within five (5) days from notice.
5

Hence, petitioners filed this petition for certiorari and mandamus to set aside the aforesaid
orders and to compel respondent to issue the warrants of arrest in Criminal Cases Nos. 12209-
12222.
Meanwhile, the respondent, in addition to his duties as presiding judge of Branch I of the City
Court of Butuan, was also assigned to preside over Branch II of said court, as Judge Jesus Ruiz,
presiding judge of said sala, had retired from the service. The informations filed by petitioners in
Branch II likewise remained dormant because of respondent's firm refusal to issue the
corresponding warrants of arrest for want of affidavits of the witnesses. Thus, as disclosed by
petitioner's urgent motion,
6
no warrants had been issued in 113 informations as of July 15,
1982.
On July 12, 1982, respondent judge received Our May 19, 1982 Resolution requiring him to
comment on the petition. However, interpreting the same as a denial of the petition itself,
respondent issued on the following day, July 13, and Omnibus Order directing petitioners to
submit immediately the supporting affidavits and other evidence in Criminal Cases Nos. 12209-
12222. Having failed to secure a reconsideration of said Omnibus Order, petitioners finally
submitted the required affidavits and documents on July 15, 1982 in order to avoid further delay
in the prosecution of these cases.
This move on the part of the petitioners would have rendered the instant petition moot and
academic. But while respondent gave due course to some of said cases either by issuing the
warrants of arrest or taking some other appropriate action,
7
he refused to issue the warrants in
Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422, and instead ordered the records
thereof remanded to the City Fiscal "for further preliminary investigation or reinvestigation," for
on the bases of said affidavits, respondent found no prima facie case against the accused.
Petitioners therefore filed a motion with this Court to restrain respondent from enforcing the
orders subject of the main petition and to compel him to accept, and take cognizance of, all the
informations filed in his court. They contend that the fiscal's certification in the information of
the existence of probable cause constitutes sufficient justification for the judge to issue a warrant
of arrest; and that such certification binds the judge, it being supported by the presumption that
the investigating fiscal had performed his duties regularly and completely.
Upon the other hand, respondent justifies his order as an exercise of his judicial power to review
the fiscal's findings of probable cause. He further maintains that the failure of petitioners to file
the required affidavits destroys the presumption of regularity in the performance of petitioners'
official duties, particularly in the light of the long standing practice of the Office of the City Fiscal
of Butuan of attaching to the informations filed with the court the affidavits of prosecution
witnesses and other documentary evidence presented during the preliminary investigation.
153

The issue to be resolved is whether or not the respondent city judge may, for the purpose of
issuing a warrant of arrest, compel the fiscal to submit to the court the supporting affidavits and
other documentary evidence presented during the preliminary investigation.
We sustain the position of respondent judge.
The primary requirement for the issuance of a warrant of arrest is the existence of probable
cause. Section 3, Article IV of the 1973 Constitution provides that-
... no search warrant or warrant of arrest shall issue except upon probable cause
to be determined by the judge, or such other responsible officer, as may be
recognized by law, after examination under oath or affirmance of the complainant
and the witnesses he may produce ....
P.D. No. 911 authorizes the fiscal or state prosecutor to determine the existence of probable
cause. Thus,
If on the basis of complainant's sworn statements and documents submitted, the
investigating dismiss the raise. If probable cause is established by complainant's
evidence, he shall notify the respondent by issuing a subpoena .... (Sec. 1 [b], RA
5180, as amended by P.D. Nos. 77 and 911).
The fiscal or state prosecutor shall certify under oath in the information to be filed
by him that he has examined the complainant and his witnesses; that on the
basis of the sworn Statements and other evidence submitted before him there is
reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof ... (Sec. 1[d], Id.).
There is thus no dispute that the judge may rely upon the fiscal's certification of the existence of
probable cause and, on the basis thereof, issue a warrant of arrest, But does such certification
bind the judge to come out with the warrant? We answer this query in the negative. The issuance
of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on
the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule
112 of the Rules of Court:
Warrant of arrest, when issued. If the judge be satisfied from the preliminary
examination conducted by him or by the investigating officer that the offense
complained of has been committed and that there is reasonable ground to believe
that the accused has committed it, he must issue a warrant or order for his arrest.
Under this section, the judge must satisfy himself of the existence of probable cause before
issuing , a warrant or order of arrest. If on the face of the information the judge finds no probable
cause, he may disregard the fiscals certification and require the submission of the affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has
been the rule since U.S. vs. Ocampo
8
and Amarga vs. Abbas.
9
And this evidently is the reason
for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July
13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a
matter of long-standing practice had been attached to the informations filed in his sala,
respondent found the informations inadequate bases for the determination of probable cause.
For as the ensuing events would show, after petitioners had submitted the required affidavits,
respondent wasted no time in issuing the warrants of arrest in the cases where he was satisfied
that probable cause existed.
German to the issue at hand is the Rule on Summary Procedure in Special Cases
10
applicable to
the following, to wit:
154

I. B. Criminal Cases:
(1) Violation of traffic laws, rules and regulations;
(2) Violations of the rental laws;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the offense
charged does not exceed six (6) months imprisonment, or a fine of One Thousand
Pesos [1,000.00], or both irrespective of other imposable penalties, accessory or
otherwise, or of the civil liability arising therefrom; Provided, however, that in
offenses involving damage to property through reckless negligence, this Rule shall
govern where the imposable fine does not exceed Ten Thousand Pesos [10,000.00].
In said cases, the filing of the affidavits of witnesses with the court is mandatory. Section 9, par.
2 of said Rule prescribes that "the complaint or information must be accompanied by the
affidavits of the complainant and of his witnesses in such number of copies as there are
defendants plus two (2) copies for the court's files.
Section 10 of the Summary Rule provides:
On the basis of the complaint or information and the affidavits accompanying the same, the
court shall make a preliminary determination whether to dismiss the case outright for
being patently without basis or merit, or to require further proceedings to be taken. In the
latter case, the court may set the case for immediate arraignment of an accused under
custody, and if he pleads guilty, may render judgment forthwith. If he pleads not guilty,
and in all other cases, the court shall issue an order, accompanied by copies of all the
affidavits submitted by the complainant, directing the defendants to appear and submit his
counter-affidavit and those of his witnesses at a specified date not later than ten (10) days
from receipt thereof.
Failure on the part of the defendant to appear whenever required, shall cause the issuance
of a warrant for his arrest if the court shall find that a probable cause exists after an
examination in writing and under oath or affirmation of the complainant and his witnesses.
The obvious purpose of requiring the submission of affidavits of the complainant and of his
witnesses is to enable the court to determine whether to dismiss the case outright or to require
further proceedings.
One last point. It appears that after petitioners had submitted the required affidavits of
witnesses, the respondent judge ordered Criminal Cases Nos. 12417, 12418, 12419, 12420 and
12422 remanded to the City Fiscal for further preliminary investigation or reinvestigation. We
hold that respondent did not abuse his discretion in doing so. From the informations and
affidavits presented to him, he found the charges patently without basis or merit. For respondent
to issue the warrants of arrest and try the accused would only expose the latter to unnecessary
harrassment, anxiety and expense. And as already pointed out, under the Rule on Summary
Procedure in Special Cases, the respondent judge has the power to order the outright dismissal
of the charge if, from the information and the affidavits attached thereto, he finds the same to be
patently without basis or merit.
WHEREFORE, the petition is hereby dismissed. No costs.
SO ORDERED.
155

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.
Aquino, J., took no part.

Footnotes
1 Annexes K and L, pp. 33-34, 35-36, Rollo.
2 Annexes M and N pp. 38-40, Rollo.
3 Annexes 2, AA BB and CC pp. 69-74, Rollo.
4 Annexes DD and EE pp. 75-77, Rollo.
5 Annexes FF p. 82, Rollo.
6 Dated July 1-5, 1982, p. 103, Rollo.
7 Certification of the Clerk of Court dated August 20, 1982, p. 136, Rollo.
8 Phil. 1.
9 98 Phil. 739.
10 This Summary Rule took effect on August 1, 1983.











156

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.
MANZANAS,petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS
C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court,
at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE
PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE
MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos.
82827 and 83979.
R E S O L U T I O N

PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or not petitioners
were denied due process when informations for libel were filed against them although the finding
of the existence of a prima facie case was still under review by the Secretary of Justice and,
subsequently, by the President; (2) whether or not the constitutional rights of Beltran were
violated when respondent RTC judge issued a warrant for his arrest without personally
examining the complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may initiate criminal
proceedings against the petitioners through the filing of a complaint-affidavit.
157

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of
the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against
petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the
Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With these
developments, petitioners' contention that they have been denied the administrative remedies
available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due
process of law in the preliminary investigation is negated by the fact that instead of submitting
his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his
right to refute the complaint by filing counter-affidavits. Due process of law does not require that
the respondent in a criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be given the
opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his determination
of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion
as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down
guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated
and clarified in this resolution.
158

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus,
with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion
amounting to lack or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal
proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may
subsequently have to be a witness for the prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity
from suit, as by testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering
that being the Chief Executive of the Government is a job that, aside from requiring all of the
office holder's time, also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may
be invoked only by the holder of the office; not by any other person in the President's behalf.
Thus, an accused in a criminal case in which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so minded the President may shed the protection afforded by the privilege and
submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is
solely the President's prerogative. It is a decision that cannot be assumed and imposed by any
other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because
of the privileged character or the publication, the Court reiterates that it is not a trier of facts and
that such a defense is best left to the trial court to appreciate after receiving the evidence of the
parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling
effect" on press freedom, the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely
abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and
prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on
the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos.
82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of
the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is
LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur.



159

Separate Opinions

GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues mentioned in
its opening statement. However, as to the more important issue on whether or not the
prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve
my vote. I believe this is the more important issue in these petitions and it should be resolved
now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should
not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial
justice where it is not alone the criminal liability of an accused in a seemingly minor libel case
which is involved but broader considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the Republic
and one who enjoys unprecedented public support asks for the prosecution of a newspaper
columnist, the publisher and chairman of the editorial board, the managing editor and the
business manager in a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which
tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a
simple prosecution for libel. We have as complainant a powerful and popular President who
heads the investigation and prosecution service and appoints members of appellate courts but
who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of
the invocations of freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the matter to
fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a
clear conscience." The Court pointed out that while defamation is not authorized, criticism is to
be expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:



160

xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the
eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman,
and has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government official. Again, the
Supreme Court should draw this fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977])
that a prosecution for libel lacks justification if the offending words find sanctuary within the
shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to
continue, where after discounting the possibility that the words may not be really that libelous,
there is likely to be a chilling effect, a patently inhibiting factor on the willingness of
newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily column,
the editors tell their people to lay off certain issues or certain officials, the effect on a free press
would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must
call attention to our decisions which caution that "no inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise should be characterized as
libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct
328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for
the repression of expression that have been challenged in this Court, libel can
claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American
government. They recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear of punishment
for its infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsel is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by lawthe argument of
force in its worst form. ...
161

Thus we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. ... (at
pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that
Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas
knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of
these petitions, should not a differentiated approach to their particular liabilities be taken
instead of lumping up everybody with the offending columnist? I realize that the law includes
publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to
publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel
is not protected by the free speech clause but we have to understand that some provocative
words, which if taken literally may appear to shame or disparage a public figure, may really be
intended to provoke debate on public issues when uttered or written by a media personality. Will
not a criminal prosecution in the type of case now before us dampen the vigor and limit the
variety of public debate? There are many other questions arising from this unusual case which
have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The
first issue on prematurity is moot. The second issue discusses a procedure now embodied in the
recently amended Rules of Court on how a Judge should proceed before he issues a warrant of
arrest. Anent the third issue, considerations of public policy dictate that an incumbent President
should not be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception.
I know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But
why should we subject them to this problem? And why should we allow the possibility of the trial
court treating and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving government power
and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on any subject, it is
that criminal libel laws are consistent with the concept of ordered liberty only
when applied with safeguards evolved to prevent their invasion of freedom of
expression.
In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues mentioned in
its opening statement. However, as to the more important issue on whether or not the
prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve
162

my vote. I believe this is the more important issue in these petitions and it should be resolved
now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should
not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial
justice where it is not alone the criminal liability of an accused in a seemingly minor libel case
which is involved but broader considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the Republic
and one who enjoys unprecedented public support asks for the prosecution of a newspaper
columnist, the publisher and chairman of the editorial board, the managing editor and the
business manager in a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which
tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a
simple prosecution for libel. We have as complainant a powerful and popular President who
heads the investigation and prosecution service and appoints members of appellate courts but
who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of
the invocations of freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the matter to
fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a
clear conscience." The Court pointed out that while defamation is not authorized, criticism is to
be expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the
eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman,
and has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government official. Again, the
Supreme Court should draw this fine line instead of leaving it to lower tribunals.
163

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977])
that a prosecution for libel lacks justification if the offending words find sanctuary within the
shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to
continue, where after discounting the possibility that the words may not be really that libelous,
there is likely to be a chilling effect, a patently inhibiting factor on the willingness of
newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily column,
the editors tell their people to lay off certain issues or certain officials, the effect on a free press
would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must
call attention to our decisions which caution that "no inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise should be characterized as
libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).<re||an1w>
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct
328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for
the repression of expression that have been challenged in this Court, libel can
claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American
government. They recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear of punishment
for its infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsel is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by lawthe argument of
force in its worst form. ...
Thus we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. ... (at
pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that
Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas
knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of
these petitions, should not a differentiated approach to their particular liabilities be taken
instead of lumping up everybody with the offending columnist? I realize that the law includes
publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to
publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel
is not protected by the free speech clause but we have to understand that some provocative
164

words, which if taken literally may appear to shame or disparage a public figure, may really be
intended to provoke debate on public issues when uttered or written by a media personality. Will
not a criminal prosecution in the type of case now before us dampen the vigor and limit the
variety of public debate? There are many other questions arising from this unusual case which
have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The
first issue on prematurity is moot. The second issue discusses a procedure now embodied in the
recently amended Rules of Court on how a Judge should proceed before he issues a warrant of
arrest. Anent the third issue, considerations of public policy dictate that an incumbent President
should not be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception.
I know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But
why should we subject them to this problem? And why should we allow the possibility of the trial
court treating and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving government power
and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on any subject, it is
that criminal libel laws are consistent with the concept of ordered liberty only
when applied with safeguards evolved to prevent their invasion of freedom of
expression.
In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.









165

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81510 March 14, 1990
HORTENCIA SALAZAR, petitioner,
vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ, respondents.
Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and
seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.
The facts are as follows:
xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City,
in a sworn statement filed with the Philippine Overseas Employment
Administration (POEA for brevity) charged petitioner Hortencia Salazar, viz:
04. T: Ano ba ang dahilan at ikaw ngayon ay narito
at
nagbibigay ng salaysay.
S: Upang ireklamo sa dahilan ang aking PECC Card ay
ayaw ibigay sa akin ng dati kong manager. Horty
Salazar 615 R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap and ginawang
panloloko sa
iyo ng tao/mga taong inireklamo mo?
S. Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
S. Pagkagaling ko sa Japan ipinatawag niya ako.
Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng
ibang
company pero ayaw niyang ibigay and PECC Card
ko.
166

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom
said complaint was assigned, sent to the petitioner the following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE
MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON
NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU.
FAIL NOT UNDER PENALTY OF LAW.
4. On the same day, having ascertained that the petitioner had no license to
operate a recruitment agency, public respondent Administrator Tomas D.
Achacoso issued his challenged CLOSURE AND SEIZURE ORDER NO. 1205 which
reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment
agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila
and the seizure of the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having verified that you
have
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of
the New Labor Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution
under existing laws.
Done in the City of Manila, this 3th day of November, 1987.
5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita
B. Espiritu issued an office order designating respondents Atty. Marquez, Atty.
Jovencio Abara and Atty. Ernesto Vistro as members of a team tasked to
implement Closure and Seizure Order No. 1205. Doing so, the group assisted by
Mandaluyong policemen and mediamen Lito Castillo of the People's Journal and
Ernie Baluyot of News Today proceeded to the residence of the petitioner at 615
R.O. Santos St., Mandaluyong, Metro Manila. There it was found that petitioner
was operating Hannalie Dance Studio. Before entering the place, the team served
said Closure and Seizure order on a certain Mrs. Flora Salazar who voluntarily
allowed them entry into the premises. Mrs. Flora Salazar informed the team that
Hannalie Dance Studio was accredited with Moreman Development (Phil.).
However, when required to show credentials, she was unable to produce any.
Inside the studio, the team chanced upon twelve talent performers practicing a
dance number and saw about twenty more waiting outside, The team confiscated
assorted costumes which were duly receipted for by Mrs. Asuncion Maguelan and
witnessed by Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following letter:
167

Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila,
we respectfully request that the personal properties seized at her residence last
January 26, 1988 be immediately returned on the ground that said seizure was
contrary to law and against the will of the owner thereof. Among our reasons are
the following:
1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3, 1987
violates "due process of law" guaranteed under Sec. 1, Art. III, of
the Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine
Constitution which guarantees right of the people "to be secure in
their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose."
3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her
consent and were done with unreasonable force and intimidation,
together with grave abuse of the color of authority, and constitute
robbery and violation of domicile under Arts. 293 and 128 of the
Revised Penal Code.
Unless said personal properties worth around TEN THOUSAND
PESOS (P10,000.00) in all (and which were already due for
shipment to Japan) are returned within twenty-four (24) hours from
your receipt hereof, we shall feel free to take all legal action, civil
and criminal, to protect our client's interests.
We trust that you will give due attention to these important
matters.
7. On February 2, 1988, before POEA could answer the letter, petitioner filed the
instant petition; on even date, POEA filed a criminal complaint against her with
the Pasig Provincial Fiscal, docketed as IS-88-836.
1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be
barred are alreadyfait accompli, thereby making prohibition too late, we consider the petition as
one for certiorari in view of the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest)
under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the
Court's resolution.
Under the new Constitution, which states:
. . . no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
168

particularly describing the place to be searched and the persons or things to be
seized.
2

it is only a judge who may issue warrants of search and arrest.
3
In one case, it was declared that
mayors may not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the person or things to be seized." The constitutional proscription has thereby
been manifested that thenceforth, the function of determining probable cause and
issuing, on the basis thereof, warrants of arrest or search warrants, may be validly
exercised only by judges, this being evidenced by the elimination in the present
Constitution of the phrase, "such other responsible officer as may be authorized
by law" found in the counterpart provision of said 1973 Constitution, who, aside
from judges, might conduct preliminary investigations and issue warrants of
arrest or search warrants.
4

Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to
be a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally
interested in the success of his case. Although his office "is to see that justice is
done and not necessarily to secure the conviction of the person accused," he
stands, invariably, as the accused's adversary and his accuser. To permit him to
issue search warrants and indeed, warrants of arrest, is to make him both judge
and jury in his own right, when he is neither. That makes, to our mind and to that
extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002,
unconstitutional.
5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential
Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory
powers:
(c) The Minister of Labor or his duly authorized representative shall have the
power to recommend the arrest and detention of any person engaged in illegal
recruitment.
6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed
purpose of giving more teeth to the campaign against illegal recruitment. The Decree gave the
Minister of Labor arrest and closure powers:
169

(b) The Minister of Labor and Employment shall have the power to cause the
arrest and detention of such non-licensee or non-holder of authority if after proper
investigation it is determined that his activities constitute a danger to national
security and public order or will lead to further exploitation of job-seekers. The
Minister shall order the closure of companies, establishment and entities found to
be engaged in the recruitment of workers for overseas employment, without having
been licensed or authorized to do so.
7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the
Labor Minister search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized representatives
shall have the power to cause the arrest and detention of such non-licensee or
non-holder of authority if after investigation it is determined that his activities
constitute a danger to national security and public order or will lead to further
exploitation of job-seekers. The Minister shall order the search of the office or
premises and seizure of documents, paraphernalia, properties and other
implements used in illegal recruitment activities and the closure of companies,
establishment and entities found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or authorized to do so.
8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its
twilight moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare
Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo
9
is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by
Section 37 of the Immigration Law. We have ruled that in deportation cases, an arrest (of an
undesirable alien) ordered by the President or his duly authorized representatives, in order to
carry out a final decision of deportation is valid.
10
It is valid, however, because of the recognized
supremacy of the Executive in matters involving foreign affairs. We have held:
11

xxx xxx xxx
The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs.
Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation." Justice Johnson's opinion is that
when the Chief Executive finds that there are aliens whose continued presence in
the country is injurious to the public interest, "he may, even in the absence of
express law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534,
568, 569; In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport aliens because their continued presence
is detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go
Tam vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949,
956).
12

170

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional.
It (the power to order arrests) cannot be made to extend to other cases, like the one at bar. Under
the Constitution, it is the sole domain of the courts.
Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was
validly issued, is clearly in the nature of a general warrant:
Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment
agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila
and the seizure of the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having verified that you
have
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of
the New Labor Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing
laws.
13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus:
xxx xxx xxx
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general warrants.
The search warrants describe the articles sought to be seized in this wise:
1) All printing equipment, paraphernalia, paper, ink, photo
equipment, typewriters, cabinets, tables, communications/
recording equipment, tape recorders, dictaphone and the like used
and/or connected in the printing of the "WE FORUM" newspaper
and any and all documents/communications, letters and facsimile
of prints related to the "WE FORUM" newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other
publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and
3) Motor vehicles used in the distribution/circulation of the "WE
FORUM" and other subversive materials and propaganda, more
particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
171

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."
In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures,
recordings and other written instruments concerning the Communist Parties of
Texas, and the operations of the Community Party in Texas," was declared void by
the U.S. Supreme Court for being too general. In like manner, directions to "seize
any evidence in connection with the violation of SDC 13-3703 or otherwise" have
been held too general, and that portion of a search warrant which authorized the
seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the
Connecticut General Statutes (the statute dealing with the crime of conspiracy)"
was held to be a general warrant, and therefore invalid. The description of the
articles sought to be seized under the search warrants in question cannot be
characterized differently.
In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in
English history; the era of disaccord between the Tudor Government and the
English Press, when "Officers of the Crown were given roving commissions to
search where they pleased in order to suppress and destroy the literature of
dissent both Catholic and Puritan." Reference herein to such historical episode
would not be relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of non-conformity" but poses
no clear and imminent danger to state security.
14

For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no
other, who may issue warrants of arrest and search:
2. The exception is in cases of deportation of illegal and undesirable aliens, whom
the President or the Commissioner of Immigration may order arrested, following a
final order of deportation, for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials
seized as a result of the implementation of Search and Seizure Order No. 1205.
No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes
1 Rollo, 19-24; emphases in the original.
2 CONST., art. III, sec. 2.
172

3 See Ponsica v. Ignalaga, No. 72301, July 31, 1987, 152 SCRA 647; Presidential
Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16,
1989.
4 Ponsica, supra, 662-663.
5 Presidential Anti-Dollar Salting Task Force, supra, 21.
6 Pres. Decree No. 1693, "FURTHER AMENDING ARTICLE 38 OF THE LABOR
CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC
SABOTAGE."
7 Supra, sec. 1.
8 Pres. Decree No. 2018, "FURTHER AMENDING ARTICLES 38 AND 39 OF THE
LABOR CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC
SABOTAGE AND PUNISHABLE WITH IMPRISONMENT."
9 No. L-22196, June 30, 1967, 20 SCRA 562.
10 Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9
SCRA 27; Vivo v. Montesa, No. L-24576, 24 SCRA 155.
11 Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.
12 Supra, 21-22.
13 Rollo, id., 15.
14 Burgos, Sr. v. Chief of Staff, AFP No. 64261, December 26, 1984, 133 SCRA
800, 814-816.










173

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-22196 June 30, 1967
ESTEBAN MORANO, CHAN SAU WAH and FU YAN FUN, petitioners-appellants,
vs.
HON. MARTINIANO VIVO in his capacity as Acting Commissioner of
Immigration, respondent-appellant.
Engracio Fabre Law Office for petitioners-appellants.
Office of the Solicitor General Arturo A. Alafriz and Solicitor A. M. Amores for respondent-appellant.
SANCHEZ, J.:
Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6, 1932, arrived in the
Philippines on November 23, 1961 to visit her cousin, Samuel Lee Malaps. She left in mainland
China two of her children by a first marriage: Fu Tse Haw and Fu Yan Kai With her was Fu Yan
Fun, her minor son also by the first marriage, born in Hongkong on September 11, 1957.
Chan Sau Wah and her minor son Fu Yan Fun were permitted only into the Philippines under a
temporary visitor's visa for two (2) months and after they posted a cash bond of P4,000.00.
On January 24, 1962, Chan Sau Wah married Esteban Morano, a native-born Filipino citizen.
Born to this union on September 16, 1962 was Esteban Morano, Jr.
To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun obtained several
extensions. The last extension expired on September 10, 1962.1wph1.t
In a letter dated August 31, 1962, the Commissioner of Immigration ordered Chan Sau Wah and
her son, Fu Yan Fun, to leave the country on or before September 10, 1962 with a warning that
upon failure so to do, he will issue a warrant for their arrest and will cause the confiscation of
their bond.
Instead of leaving the country, on September 10, 1962, Chan Sau Wah (with her husband
Esteban Morano) and Fu Yan Fun petitioned the Court of First Instance of Manila
for mandamus to compel the Commissioner of Immigration to cancel petitioners' Alien
Certificates of Registration; prohibition to stop the Commissioner from issuing a warrant for their
arrest, and preliminary injunction to restrain the Commissioner from confiscating their cash
bond and from issuing warrants of arrest pending resolution of this case.
1
The trial court, on
November 3, 1962, issued the writ of preliminary injunction prayed for, upon a P2,000-bond.
After trial and the stipulations of facts filed by the parties, the Court of First Instance rendered
judgment, viz:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as follows:
(a) Granting this petition for Mandamus and Prohibition with respect to petitioner CHAN
SAU WAH, who is hereby declared a citizen of the Philippines; ordering the respondent to
cancel her Alien Certificate of Registration and other immigration papers, upon the
payment of proper dues; and declaring the preliminary injunction with respect to her
174

permanent, prohibiting the respondent, his representatives or subordinates from
arresting and/or deporting said petitioner;
(b) Dismissing this petition with respect to petitioner FU YAN FUN, and dissolving the writ
of preliminary injunction issued herein, restraining the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;
(c) Authorizing respondent Commissioner to forfeit the bond filed by herein petitioners
CHAN SAU WAH and FU YAN FUN in the amount of P4,000.00; and
(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of the Philippine
Immigration Act of 1940 unconstitutional;
Without pronouncement, as to costs.
Petitioners and respondent Commissioner both appealed.
We will deal with the claims of both appellants in their proper sequence.
1. The Solicitor General's brief assails the trial court's declaration that Chan Sau Wah is a citizen
of the Philippines. The court a quo took the position that "Chan Sau Wah became, by virtue of,
and upon, her marriage to Esteban Morano, a natural-born Filipino, a Filipino citizen.
2

Placed to the fore is paragraph 1, Section 15 of Commonwealth Act 473 [Revised Naturalization
Act], which reads:
Sec. 15. Effect of the naturalization on wife children. Any woman who is now or may
hereafter be married to a citizen of the Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines.
To apply this provision, two requisites must concur: (a) valid marriage of an alien woman to a
citizen of the Philippines and (b) the alien woman herself might be lawfully naturalized.
We may concede that the first requisite has been properly met. The validity of the marriage is
presumed.
But can the same be said of the second requisite? This question by all means is not new. In a
series of cases, this Court has declared that the marriage of an alien woman to a Filipino citizen
does not ipso facto make her a Filipino citizen. She must satisfactorily show that she has all the
qualifications and none of the disqualifications required by the Naturalization Law.
3
Ly Giok Ha
alias Wy Giok Ha et al. vs. Emilio Galang, L-21332, March 18, 1966,
*
clearly writes down the
philosophy behind the rule in the following expressive language, viz:
Reflection will reveal why this must be so. The qualifications prescribed under section 2
of the Naturalization Act, and the disqualifications enumerated in its section 4, are not
mutually exclusive; and if all that were to be required is that the wife of a Filipino be not
disqualified under section 4, the result might well be that citizenship would be conferred
upon persons in violation of the policy of the statute. For example, section 4 disqualifies
only
"(c) Polygamists or believers in the practice of polygamy; and
(b) Persons convicted of crimes involving moral turpitude,"
175

so that a blackmailer, or a maintainer of gambling or bawdy houses, not previously
convicted by a competent court, would not be thereby disqualified; still it is certain that
the law did not intend such a person to, be admitted as a citizen in view of the
requirement of section 2 that an applicant for citizenship "must be of good moral
character."
Similarly, the citizen's wife might be a convinced believer in racial supremacy, in
government by certain selected classes, in the right to vote exclusively by certain
"herrenvolk," and thus disbelieve in the principles underlying the Philippine Constitution;
yet she would not be disqualified under section 4, as long as she is not "opposed to
organized government," nor affiliated to groups "upholding or teaching doctrines opposing
all organized governments," nor "defending or teaching the necessity or propriety of
violence, personal assault or assassination for the success or predominance of their
ideas." Et sic de caeteris.
Upon the principle of selective citizenship, we cannot afford to depart from the wise precept
affirmed and reaffirmed in the cases heretofore noted.
In the additional stipulation of facts of July 3, 1963, petitioners admit that Chan Sau Wah is not
possessed of all the qualifications required by the Naturalization Law.
Because of all these we are left under no doubt that petitioner Chan Sau Wah did not become a
Filipino citizen.
2. Squarely put in issue by petitioners is the constitutionality of Section 37 (a) of the Immigration
Act of 1940, which reads:
Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner
of Immigration or of any other officer designated by him for the purpose and deported
upon the warrant of the Commissioner of Immigration after a determination by the Board
of Commissioners of the existence of the ground for deportation as charged against the
alien:
x x x x x x x x x
(7) Any alien who remains in the Philippines in violation of any limitation or condition
under which he was admitted as a nonimmigrant.
Petitioners argue that the legal precept just quoted trenches upon the constitutional mandate in
Section 1 (3), Article III [Bill of Rights] of the Constitution, to wit:
(3) The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated, and no warrants shall
issue but upon probable cause, to be determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized.
They say that the Constitution limits to judges the authority to issue warrants of arrest and that
the legislative delegation of such power to the Commissioner of Immigration is thus violative of
the Bill of Rights.
Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in
the execution of a final order of deportation issued in accordance with law. The constitutional
limitation contemplates an order of arrest in the exercise of judicial power
4
as a step preliminary
176

or incidental to prosecution or proceedings for a given offense or administrative action, not as a
measure indispensable to carry out a valid decision by a competent official, such as a legal order
of deportation, issued by the Commissioner of Immigration, in pursuance of a valid legislation.
The following from American Jurisprudence,
5
is illuminating:
It is thoroughly established that Congress has power to order the deportation of aliens
whose presence in the country it deems hurtful. Owing to the nature of the proceeding,
the deportation of an alien who is found in this country in violation of law is not a
deprivation of liberty without due process of law. This is so, although the inquiry devolves
upon executive officers, and their findings of fact, after a fair though summary hearing,
are made conclusive.
x x x x x x x x x
The determination of the propriety of deportation is not a prosecution for, or a conviction
of, crime; nor is the deportation a punishment, even though the facts underlying the
decision may constitute a crime under local law. The proceeding is in effect simply a
refusal by the government to harbor persons whom it does not want. The coincidence of
local penal law with the policy of Congress is purely accidental, and, though supported by
the same facts, a criminal prosecution and a proceeding for deportation are separate and
independent.
In consequence, the constitutional guarantee set forth in Section 1 (3), Article III of the
Constitution aforesaid, requiring that the issue of probable cause be determined by a judge, does
not extend to deportation proceedings.
6

The view we here express finds support in the discussions during the constitutional convention.
The convention recognized, as sanctioned by due process, possibilities and cases of deprivation
of liberty, other than by order of a competent court.
7

Indeed, the power to deport or expel aliens is an attribute of sovereignty. Such power is planted
on the "accepted maxim of international law, that every sovereign nation has the power, as
inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners
within its dominions."
8
So it is, that this Court once aptly remarked that there can be no
controversy on the fact that where aliens are admitted as temporary visitors, "the law is to the
effect that temporary visitors who do not depart upon the expiration of the period of stay granted
them are subject to deportation by the Commissioner of Immigration, for having violated the
limitation or condition under which they were admitted as non-immigrants (Immigration Law,
Sec. 37 (a), subsection (7); C.A. 613, as amended)."
9

And, in a case directly in point, where the power of the Commissioner to issue warrants of
arrest was challengedas unconstitutional, because "such power is only vested in a judge by
Section 1, paragraph 3, Article III of our Constitution," this Court declared
This argument overlooks the fact that the stay of appellant Ng Hua To as temporary
visitor is subject to certain contractual stipulations as contained in the cash bond put up
by him, among them, that in case of breach the Commissioner may require the
recommitment of the person in whose favor the bond has been filed. The Commissioner
did nothing but to enforce such condition. Such a step is necessary to enable the
Commissioner to prepare the ground for his deportation under section 37 (a) of
Commonwealth Act 613. A contrary interpretation would render such power nugatory to
the detriment of the State.
10

177

It is in this context that we rule that Section 37 (a) of the Immigration Act of 1940 is not
constitutionally proscribed.
3. A sequel to the questions just discussed is the second error set forth in the government's brief.
The Solicitor General balks at the lower court's ruling that petitioner Chan Sau Wah is entitled to
permanent residence in the Philippines without first complying with the requirements of Sections
9 and 13 of the Immigration Act of 1940, as amended by Republic Act 503.
We first go to the law, viz:
SEC. 9 [last paragraph]
An alien who is admitted as a nonimmigrant cannot remain in the Philippines
permanently. To obtain permanent admission, a nonimmigrant alien must depart
voluntarily to some foreign country and procure from the appropriate Philippine consul
the proper visa and thereafter undergo examination by the officers of the Bureau of
Immigration at a Philippine port of entry for determination of his admissibility in
accordance with the requirements of this Act.
SEC. 13. Under the conditions set forth in this Act there may be admitted into the
Philippines immigrants, termed "quota immigrants" not in excess of fifty (50) of any one
nationality or without nationality for any one calendar year, except that the following
immigrants, termed "nonquota immigrants," maybe admitted without regard to such
numerical limitations.
The corresponding Philippine Consular representative abroad shall investigate and certify
the eligibility of a quota immigrant previous to his admission into the Philippines.
Qualified and desirable aliens who are in the Philippines under temporary stay may be
admitted within the quota, subject to the provisions of the last paragraph of section 9 of
this Act.
(a) The wife or the husband or the unmarried child under twenty-one years of age of a
Philippine citizen, if accompanying or following to join such citizen;
(b) A child of alien parents born during the temporary visit abroad of the mother, the
mother having been previously lawfully admitted into the Philippine for permanent
residence, if the child is accompanying or coming to join a parent and applies for
admission within five years from the date of its birth;
Concededly, Chan Sau Wah entered the Philippines on a tourist-temporary visitor's visa. She is a
non-immigrant. Under Section 13 just quoted, she may therefore be admitted if she were a
qualified and desirable alien and subject to the provisions of the last paragraph of Section 9.
Therefore, first, she must depart voluntarily to some foreign country; second, she must procure
from the appropriate consul the proper visa; and third, she must thereafter undergo examination
by the officials of the Bureau of Immigration at the port of entry for determination of her
admissibility in accordance with the requirements of the immigration Act.
This Court in a number of cases has ruled, and consistently too, that an alien admitted as a
temporary visitor cannot change his or her status without first departing from the country and
complying with the requirements of Section 9 of the Immigration Act.
11

The gravamen of petitioners' argument is that Chan Sau Wah has, since her entry, married in
Manila a native-born Filipino, Esteban Morano. It will not particularly help analysis for
petitioners to appeal to family solidarity in an effort to thwart her deportation. Chan Sau Wah,
178

seemingly is not one who has a high regard for such solidarity. Proof: She left two of her children
by the first marriage, both minors, in the care of neighbors in Fukien, China.
Then, the wording of the statute heretofore adverted to is a forbidding obstacle which will prevent
this Court from writing into the law an additional provision that marriage of a temporary alien
visitor to a Filipino would ipso factomake her a permanent resident in his country. This is a field
closed to judicial action. No breadth of discretion is allowed us. We cannot insulate her from the
State's power of deportation.
Really, it would be an easy matter for an alien woman to enter the Philippines as a temporary
visitor, go through a mock marriage, but actually live with another man as husband and wife,
and thereby skirt the provisions of our immigration law. Also, a woman of undesirable character
may enter this country, ply a pernicious trade, marry a Filipino, and again throw overboard
Sections 9 and 13 of the Act. Such a flanking movement, we are confident, is impermissible.
Recently we confirmed the rule that an alien wife of a Filipino may not stay permanently without
first departing from the Philippines. Reason: Discourage entry under false pretenses.
12

The ruling of the trial court on this score should be reversed.
4. It is petitioners' turn to point as error the dismissal of the petition for mandamus and
prohibition with respect to petitioner Fu Yan Fun.
Petitioners' line of thought is this: Fu Yan Fun follows the citizenship of his mother. They cite
Section 15, paragraph 3, Commonwealth Act 473, which says that:
A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization
of the parent, shall automatically become a Philippine citizen. . . .
Petitioners' position is based on the assumption that Chan Sau Wah, the mother, is a Filipino
citizen. We have held that she is not. At best, Fu Yan Fun is a step-son of Esteban Morano,
husband of Chan Sau Wah. A step-son is not a foreign-born child of the step-father.
The word child, we are certain, means legitimate child, not a step-child. We are not wanting in
precedents. Thus, when the Constitution provides that "[t]hose whose fathers are citizens of the
Philippines" are citizens thereof,
13
the fundamental charter intends "those" to apply to legitimate
children.
14
In another case, the term "minor children" or "minor child" in Section 15 of the
Revised Naturalization Law refers only to legitimate children of Filipino citizens. This Court, thru
Mr. Chief Justice Roberto Concepcion, there said:
15

It is claimed that the phrases "minor children" and "minor child," used in these
provisions, include adopted children. The argument is predicated upon the theory that an
adopted child is, for all intents and purposes, a legitimate child. Whenever, the word
"children" or "child" is used in statutes, it is generally understood, however, to refer to
legitimate children, unless the context of the law and its spirit indicate clearly the
contrary. Thus, for instance, when the Constitution provides that "those whose fathers
are citizens of the Philippines," and "those whose mothers are citizens of the Philippines"
who shall elect Philippine citizenship upon reaching the age of majority, are citizens of the
Philippines (Article IV, Section 1, subdivisions [3] and [4]), our fundamental law clearly
refers to legitimate children (Chiongbian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v.
Republic, L-4223, May 12, 1952).
At any rate, Fu Yan Fun entered the Philippines as a temporary visitor. The status of a
temporary visitor cannot be converted into, that of a permanent resident, as we have heretofore
held, without first complying with Section 9 of the Immigration Law.
179

5. Petitioners finally aver that the lower court erred in authorizing respondent Commissioner to
forfeit the bond filed by petitioners Chan Sau Wah and Fu Yan Fun in the amount of P4,000.00.
Here is petitioners' posture. They enjoyed their stay in the Philippines upon a bond. Now they
come to court and say that as the prescribed form of this bond was not expressly approved by
the Secretary of Justice in accordance with Section 3 of Commonwealth Act 613, which reads
SEC. 3. . . . He [Commissioner of Immigration] shall issue, subject to the approval of the
Department Head, such rules and regulations and prescribes such forms of bond,
reports, and other papers, and shall issue from time to time such instruction, not
inconsistent with law, as he shall deem best calculated to carry out the provisions of the
immigration laws. . . .
that bond is void.
Reasons there are which prevent us from giving our imprimatur to this argument.
The provision requiring official approval of a bond is merely directory. "Irregularity or entire
failure in this respect does not affect the validity of the bond.
16
The reason for the rule, is found
in 9 C.J., p. 26 (footnote), which reads:
(a) Reason for rule. "Statutes requiring bonds to be approved by certain officials are not for the
purpose of protecting the obligors in the bond, but are aimed to protect the public, to insure their
solvency, and to create evidence of an unimpeachable character of the fact of their execution.
When they are executed for a legal purpose, before a proper tribunal, and are in fact accepted
and approved by the officer or body, whose duty it was to approve them, it could serve no useful
purpose of the law to hold them invalid, to release all the obligors thereon, and to defeat every
purpose of its execution, simply because the fact of approval was not indorsed precisely as had
been directed by the Legislature." American Book Co. vs. Wells, 83 SW 622, 627, 26 Ky L-1159.
(emphasis supplied)
And another. This bond was accepted by the government. It had been there. The form of the
bond here used is of long continued usage. If the government did not question the form of the
bond at all, then we must assume that it counted with the Secretary's approval. For the
presumption is that official duty has been legally performed.
Surely enough, equitable considerations will stop petitioners from pleading invalidity of the bond.
They offered that bond to enable them to enter and stay in this country. They enjoyed benefits
therefrom. They cannot, "in law, and good conscience, be allowed to reap the fruits" of that bond,
and then jettison the same. They are "precluded from attacking the validity" of such bond.
17

Actually, to petitioners the bond was good while they sought entry into the Philippines; they
offered it as security for the undertaking; that they "will actually depart from the Philippines"
when their term of stay expires. Now that the bond is being confiscated because they overstayed,
they make an about-face and say that such bond is null and void. They shall not profit from this
inconsistent position. Their bond should be confiscated.
Conformably to the foregoing, the judgment under review is hereby modified as follows:
(1) The portion thereof which reads:
(a) Granting their petition for Mandamus and Prohibition with respect to petitioner CHAN
SAU WAH, who is hereby declared a citizen of the Philippines; ordering the respondent to
cancel her Alien Certificate of Registration and other immigration papers, upon the
180

payment of proper dues; and declaring preliminary injunction with respect to her
permanent, prohibiting the respondent, his representatives or subordinates from
arresting and/or deporting said petitioner;
is hereby reversed: and, in consequence
The petition for mandamus and prohibition with respect to petitioner Chan Sau Wah is hereby
denied; and the judgment declaring her a citizen of the Philippines, directing respondent to
cancel her Alien Certificate of Registration and other immigration papers, and declaring the
preliminary injunction with respect to her permanent, are all hereby set aside; and
(2) In all other respects, the decision appealed from is hereby affirmed.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon J.P., Zaldivar and Castro, J.J., concur.
Separate Opinions
DIZON, J., concurring:
I concur (in the result) with the majority opinion penned by Mr. Justice Conrado Sanchez, for the
reason that, as stated therein, "In the additional stipulation of facts of July 3, 1963,
petitioners admit that Chan Sau Wah is not possessed of all the qualifications required by the
Naturalization Law."
Footnotes
1
Civil Case No. 51538 of the Court of First Instance of Manila, entitled "Esteban Morano,
Chan Sau Wah and Fu Yan Fun, petitioners, vs. Hon. Martiniano Vivo, in his capacity as
Acting Commissioner of Immigration, respondent."
2
Record below, pp. 181-182.
3
Lo San Tuang vs. Galang, L-18775, November 30, 1963; Sun Peck Young vs.
Commissioner of Immigration, L-20784, December 27, 1963; Tong Sick Sy vs. Vivo, L-
21136, December 27, 1963; Lao Chay vs. Galang, L-19977, October 30, 1964; Choy King
Tee vs. Galang, L-18351, March 26, 1965; Austria vs. Conchu, L-20716, June 22, 1965;
Brito vs. Commissioner of Immigration, L-16829, June 30, 1965; Santos Chan vs.
Galang, L-21732, October 17, 1966.
*
Reported in 16 Supreme Court Reports Annotated 414.
4
Tu Chuan Hai vs. Commissioner of Immigration, 55 O.G. No. 28, pp. 5272, 5274-5275.
5
2 Am. Jur., p. 517.
6
Tu Chuan Hai vs. Commissioner of Immigration, supra; Abel vs. United States, supra, at
pp. 681-683.
7
Laurel's Records of the Proceedings of the Constitutional Convention, Vol. VIII, pp. 86-
89. Justice Laurel here makes mention of arrests in a "contempt proceeding of the
Legislature."
181

8
Nishimura Ekiu vs. U.S., 142 U.S. 651, 35 L. ed. 1146, 1149.
9
Ong See Lun and Go Uan vs. Board of Immigration and Jose P. Bengzon, etc., 95 Phil.
785, 788.
10
Ng Hua To vs. Galang, L-16140, February 29, 1964.
NOTE:Petitioners' bond herein contains the following stipulation: "(a) That the
undersigned, with full knowledge that SEE ABOVE are tourist-temporary
visitors whose authorized stay in this country is limited only up to and including
FIFTY-NINE (59) DAYS 19 , hereby undertake that said SEE ABOVE will
actually depart from the Philippines on or before said date so specified, or within
such period as, in his discretion, the Commissioner of Immigration or his
authorized representative may properly allow."
11
Ong Se Lun vs. Board of Immigration Commissioners, supra; Chiong Tiao Bing vs.
Commissioner of Immigration, 99 Phil. 1020, 1022; Sy Hong vs. Commissioner of
Immigration, 101 Phil. 1207, 1208; Ang It vs. Commissioner of Immigration, 102 Phil.
532, 535-537; Ng Hin vs. Commissioner of Immigration, L-13026, March 30, 1960; Kua
Suy vs. Commissioner of Immigration, L-13790, October 31, 1963; Lim Chick vs. Vivo, L-
20513, December 26, 1963; See Guan vs. Commissioner of Immigration, L-21811,
November 29, 1965.
12
Co Pek vs. Vivo, L-21775, December 17, 1966.
13
Article IV, Section 1, subdivision 3, Philippine Constitution.
14
Chiongbian vs. de Leon, 82 Phil. 771, 774.
15
Ching Leng vs. Galang, L-11432, October 27, 1958.
16
9 C. J., p. 25.
"The failure of a court or officer to approve or file an official bond will not affect its
validity for the reason that the government or other official body is not responsible
for the laches of its officers." 8 Am. Jur., p. 717.
17
De Borja Vda. de Torres vs. Encarnacion, 89 Phil. 678, 681.







182

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82544 June 28, 1988
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN
SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION AND DEPORTATION, respondent.

MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch
citizen also residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from their respective
residences by agents of the Commission on Immigration and Deportation (CID) by virtue of
Mission Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID.
Petitioners are presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended
after three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after
apprehension, or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens
opted for self-deportation and have left the country. One was released for lack of evidence;
another was charged not for being a pedophile but for working without a valid working visa.
Thus, of the original twenty two (22), only the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected
child prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There
were also posters and other literature advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988
stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:
Noted:
183

There were two (2) children ages 14 & 16 which subject readily
accepted having been in his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings were instituted against petitioners for being
undesirable aliens under Section 69 of the Revised Administrative Code (Deportation Case No.
88-13). The "Charge Sheet" read inter alia:
Wherefore, this Office charges the respondents for deportation, as undesirable
aliens, in that: they, being pedophiles, are inimical to public morals, public health
and public safety as provided in Section 69 of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation
of Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative
Code On the same date, the Board of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their
health was being seriously affected by their continuous detention. Upon recommendation of the
Board of Commissioners for their provisional release, respondent ordered the CID doctor to
examine petitioners, who certified that petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied
considering the certification by the CID physician that petitioners were healthy. To avoid
congestion, respondent ordered petitioners' transfer to the CID detention cell at Fort Bonifacio,
but the transfer was deferred pending trial due to the difficulty of transporting them to and from
the CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had
"finally agreed to a self-deportation" and praying that he be "provisionally released for at least 15
days and placed under the custody of Atty. Asinas before he voluntarily departs the country." On
7 April 1988, the Board of Special Inquiry III allowed provisional release of five (5) days only
under certain conditions. However, it appears that on the same date that the aforesaid
Manifestation/ Motion was filed, Harvey and his co-petitioners had already filed the present
petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas
Corpus. A Return of the Writ was filed by the Solicitor General and the Court heard the case on
oral argument on 20 April 1988. A Traverse to the Writ was presented by petitioners to which a
Reply was filed by the Solicitor General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the
Revised Administrative Code, which legally clothes the Commissioner with any authority to
arrest and detain petitioners pending determination of the existence of a probable cause leading
to an administrative investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable
searches and seizures since the CID agents were not clothed with valid Warrants of arrest,
search and seizure as required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with their association with other suspected
pedophiles, are not valid legal grounds for their arrest and detention unless they are caught in
the act. They further allege that being a pedophile is not punishable by any Philippine Law nor is
it a crime to be a pedophile.
184

We reject petitioners' contentions and uphold respondent's official acts ably defended by the
Solicitor General.
There can be no question that the right against unreasonable searches and seizures guaranteed
by Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens,
whether accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the
constitutional requirements of a valid search warrant or warrant of arrest is that it must be
based upon probable cause. Probable cause has been defined as referring to "such facts and
circumstances antecedent to the issuance of the warrant that in themselves are sufficient to
induce a cautious man to rely on them and act in pursuance thereof." (People vs. Syjuco 64 Phil.
667 [1937]; Alverez vs. CFI, 64 Phil. 33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected
by a peace officer or even a private person (1) when such person has committed, actually
committing, or is attempting to commit an offense in his presence; and (2) when an offense has,
in fact, been committed and he has personal knowledge of facts indicating that the person to be
arrested has committed it (Rule 113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after close
surveillance for three (3) months during which period their activities were monitored. The
existence of probable cause justified the arrest and the seizure of the photo negatives,
photographs and posters without warrant (See Papa vs. Mago, L-27360, February 28, 1968,22
SCRA 857; People vs. Court of First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA
86, cited in CRUZ, Constitutional Law, 1987 ed., p. 143). Those articles were seized as an
incident to a lawful arrest and, are therefore, admissible in evidence (Section 12, Rule 126,1985
Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the
records show that formal deportation charges have been filed against them, as undesirable
aliens, on 4 March 1988. Warrants of arrest were issued against them on 7 March 1988 "for
violation of Section 37, 45 and 46 of the Immigration Act and Section 69 of the Administrative
Code." A hearing is presently being conducted by a Board of Special Inquiry. The restraint
against their persons, therefore, has become legal. The Writ has served its purpose. The process
of the law is being followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were
a person's detention was later made by virtue of a judicial order in relation to criminal cases
subsequently filed against the detainee, his petition for hebeas corpus becomes moot and
academic" (Beltran vs. Garcia, L-49014, April 30, 1979, 89 SCRA 717). "It is a fumdamental rule
that a writ of habeas corpus will not be granted when the confinement is or has become legal,
although such confinement was illegal at the beginning" (Matsura vs. Director of Prisons, 77 Phil.
1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were
found with young boys in their respective rooms, the ones with John Sherman being naked.
Under those circumstances the CID agents had reasonable grounds to believe that petitioners
had committed "pedophilia" defined as "psychosexual perversion involving children" (Kraft-
Ebbing Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity) in which children are
the preferred sexual object" (Webster's Third New International Dictionary, 1971 ed., p. 1665)
[Solicitor General's Return of the Writ, on p. 101. While not a crime under the Revised Penal
Code, it is behavior offensive to public morals and violative of the declared policy of the State to
promote and protect the physical, moral, spiritual, and social well-being of our youth (Article II,
Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be considered as a
waiver of any irregularity attending their arrest and estops them from questioning its validity
185

(Callanta v. Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza,
L-61770, January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section
37(a) of the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised
Administrative Code. Section 37(a) provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the
purpose and deported upon the warrant of the Commissioner of Immigration and
Deportation after a determination by the Board of Commissioners of the existence
of the ground for deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary and
indivisible nature of a deportation proceeding, otherwise, the very purpose of deportation
proceeding would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562). The specific constraints in both the 1935
1
and 1987
2
Constitutions, which are
substantially Identical, contemplate prosecutions essentially criminal in nature. Deportation
proceedings, on the other hand, are administrative in character. An order of deportation is never
construed as a punishment. It is preventive, not a penal process. It need not be conducted
strictly in accordance with ordinary Court proceedings.
It is of course well-settled that deportation proceedings do not constitute a
criminal action. The order of deportation is not a punishment, (Maliler vs. Eby,
264 U.S., 32), it being merely the return to his country of an alien who has broken
the conditions upon which he could continue to reside within our borders (U.S. vs.
De los Santos, 33 Phil., 397). The deportation proceedings are administrative in
character, (Kessler vs. Stracker 307 U.S., 22) summary in nature, and need not be
conducted strictly in accordance with the ordinary court proceedings (Murdock vs.
Clark, 53 F. [2d], 155). It is essential, however, that the warrant of arrest shall
give the alien sufficient information about the charges against him, relating the
facts relied upon. (U.S. vs. Uhl 211 F., 628.) It is also essential that he be given a
fair hearing with the assistance of counsel, if he so desires, before unprejudiced
investigators (Strench vs. Pedaris, 55 F. [2d], 597; Ex parte Jew You On, 16 F.
[2d], 153). However, all the strict rules of evidence governing judicial controversies
do not need to be observed; only such as are fumdamental and essential like the
right of cross-examination. (U.S. vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark,
53 F. [2d], 155.) Hearsay evidence may even be admitted, provided the alien is
given the opportunity to explain or rebut it (Morrell vs. Baker, 270 F., 577;
Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang Bun vs. Fabre 81 Phil. 682
[1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance
of warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation
and before a final order of deportation is issued, conflicts with paragraph 3, Section I of Article III
of the Constitution" (referring to the 1935 Constitution)
3
is not invocable herein. Respondent
Commissioner's Warrant of Arrest issued on 7 March 1988 did not order petitioners to appear
and show cause why they should not be deported. They were issued specifically "for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative
Code." Before that, deportation proceedings had been commenced against them as undesirable
aliens on 4 March 1988 and the arrest was a step preliminary to their possible deportation.
186

Section 37 of the Immigration Law, which empowers the Commissioner of
Immigration to issue warrants for the arrest of overstaying aliens is constitutional.
The arrest is a stop preliminary to the deportation of the aliens who had violated
the condition of their stay in this country. (Morano vs. Vivo, L-22196, June 30,
1967, 20 SCRA 562).
To rule otherwise would be to render the authority given the Commissioner nugatory to the
detriment of the State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien
temporary visitor preparatory to his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for
his deportation under Section 37[al of Commonwealth Act 613. A contrary
interpretation would render such power nugatory to the detriment of the State.
(Ng Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation
proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need
be no "truncated" recourse to both judicial and administrative warrants in a single deportation
proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No.
10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under
the express terms of our Constitution (the 1935 Constitution), it is therefore even doubtful
whether the arrest of an individual may be ordered by any authority other than a judge if the
purpose is merely to determine the existence of a probable cause, leading to an administrative
investigation." For, as heretofore stated, probable cause had already been shown to exist before
the warrants of arrest were issued.
What is essential is that there should be a specific charge against the alien intended to be
arrested and deported, that a fair hearing be conducted (Section 37[c]) with the assistance of
counsel, if desired, and that the charge be substantiated by competent evidence. Thus, Section
69 of the Revised Administrative Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power
residing in the Philippines shall not be deported, expelled, or excluded from said
Islands or repatriated to his own country by the President of the Philippines
except upon prior investigation, conducted by said Executive or his authorized
agent, of the ground upon which such action is contemplated. In such a case the
person concerned shall be informed of the charge or charges against him and he
shall be allowed not less than 3 days for the preparation of his defense. He shall
also have the right to be heard by himself or counsel, to produce witnesses in his
own behalf, and to cross-examine the opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also challenged by them,
was in order because in deportation proceedings, the right to bail is not a matter of right but a
matter of discretion on the part of the Commissioner of Immigration and Deportation. Thus,
Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien under arrest in a
deportation proceeding may be released under bond or under such other conditions as may be
imposed by the Commissioner of Immigration." The use of the word "may" in said provision
187

indicates that the grant of bail is merely permissive and not mandatory on the part of the
Commissioner. The exercise of the power is wholly discretionary (Ong Hee Sang vs.
Commissioner of Immigration, L-9700, February 28,1962, 4 SCRA 442). "Neither the
Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens
facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs. Deportation Board, 104
Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action,
the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee
Sang vs. Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude aliens from its territory upon such
grounds as it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre
81 Phil. 682 [1948]). The power to deport aliens is an act of State, an act done by or under the
authority of the sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure
against undesirable aliens whose continued presence in the country is found to be injurious to
the public good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16
Phil. 534 [1910]). Particularly so in this case where the State has expressly committed itself to
defend the tight of children to assistance and special protection from all forms of neglect, abuse,
cruelty, exploitation, and other conditions prejudicial to their development (Article XV, Section
3[2]). Respondent Commissioner of Immigration and Deportation, in instituting deportation
proceedings against petitioners, acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.
SO ORDERED.
Yap, C.J., Paras, Padilla and Sarmiento, JJ., concur.

Footnotes
1 The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated and no warrant
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the
persons or things to be seized." (Sec. 1[3], Art. III).
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 search and the persons
or things to be seized." (Section 2, Art. III).
3 Reiterated in Neria vs. Vivo (L-26611-12, September 30, 1969, 29 SCRA 701);
Tiu vs. Vivo, L- 21425, September 15, 1972, 47 SCRA 23; and Ang Ngo Chiong vs.
Galang, L-21426, October 22, 1975, 67 SCRA 338).


188

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 143802 November 16, 2001
REYNOLAN T. SALES, petitioner,
vs.
SANDIGANBAYAN (4th Division), OMBUDSMAN, PEOPLE OF THE PHILIPPINES and
THELMA BENEMERITO,respondents.
YNARES-SANTIAGO, J.:
This Court is tasked to resolve the issue of whether or not the proper procedure was followed and
whether petitioner's constitutional rights were safeguarded during the preliminary investigation
conducted before the filing of an Information for Murder against him and the issuance of a
warrant for his arrest by respondent Sandiganbayan. Petitioner asserts that the Information was
hastily filed and the warrant for his arrest was improper because of an incomplete preliminary
investigation. Respondents say otherwise.
The pertinent factual antecedents are matters of record or are otherwise uncontroverted.
On August 2, 1999, petitioner, the incumbent town mayor of Pagudpud, Ilocos Norte, fatally shot
the former mayor and his political rival, Atty. Rafael Benemerito, in an alleged shootout in
Barangay Caparispisan of said municipality after a heated altercation between them. After the
shooting incident, petitioner surrendered and placed himself under the custody of the municipal
police then asked that he be brought to the Provincial PNP Headquarters in Laoag City.
The next day, August 3, 1999, Police Chief Inspector Crispin Agno and private respondent
Thelma Benemerito, wife of the victim, filed a criminal complaint for Murder
1
against petitioner
at the Municipal Circuit Trial Court of Bangui, Ilocos Norte, Branch 127, presided by Judge
Melvin U. Calvan.
Judge Calvan then conducted a preliminary examination of the witnesses, in accordance with
Section 6 (b), Rule 112 of the Rules on Criminal Procedure, found "the existence of probable
cause," and thereafter issued an order dated August 3, 1999 for the issuance of a warrant for the
arrest of petitioner with no bail recommended.
2
By virtue of the warrant of arrest, petitioner was
transferred on August 4, 1999 from the Provincial PNP Headquarters to the Provincial Jail.
On August 5, 1999, Judge Calvan, after conducting a "preliminary investigation in accordance
with Sec. 6 (b) of Rule 112 of the Rules on Criminal Procedure," issued a resolution forwarding
the records of the case to the Office of the Provincial Prosecutor of Ilocos Norte for appropriate
action.
3
In addition to the records transmitted by Judge Calvan, there was also submitted to the
Provincial Prosecutor of Ilocos Norte an NBI "Parallel Investigation" Report dated August 13,
1999, "pursuant to the request for Investigative Assistance made by Dra. Thelma Lasmarias
Benemerito, wife of the victim,"
4
with several annexed affidavits, sworn statements and
documents.
Subsequently, on August 19, 1999, petitioner received a subpoena dated August 18, 1999 from
the Provincial Prosecutor of Ilocos Norte directing him to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents within ten (10) days from
receipt thereof.
5
This petitioner did the following day, August 20, 1999.
189

While the foregoing proceedings were ongoing, petitioner filed a petition for habeas corpus with
the Court of Appeals docketed as CA-G.R. SP No. 54416, alleging that: 1.] the order and warrant
of arrest for which petitioner was detained is null and void for being issued by respondent judge
who was disqualified by law from acting on the case by reason of his affinity to private
respondent Thelma Benemerito; and 2.] the preliminary examination by respondent judge was so
illegally and irregularly conducted as to oust the said judge of jurisdiction over the case.
In a Decision dated November 18, 1999,
6
the appellate court granted the petition for habeas
corpus and ordered the release of petitioner from detention subject to the outcome of the proper
preliminary investigation. In granting the petition, the Court of Appeals reasoned, inter alia, that:
I
It is uncontroverted that respondent Judge is a relative within the third civil degree of
affinity of private respondent Thelma Benemerito. Respondent judge is married to Susana
Benemerito-Calvan, whose father is a brother of the victim.
Section 1, Rule 137 of the Rules of Court disqualifies a judge from sitting in a case in
which he is related to either party within the sixth degree of consanguinity or affinity.
This disqualification is mandatory, unlike an inhibition which is discretionary. It extends
to all proceedings, not just to the trial as erroneously contended by respondent judge.
Even Canon 3.12 of the Code of Judicial Conduct mandates that a judge shall take no
part in a proceeding where the judge's impartiality might be reasonably questioned, as
when he is "related by consanguinity or affinity to a party litigant within the sixth degree."
Due process likewise requires hearing before an impartial and disinterested tribunal so
that no judge shall preside in a case in which he is not wholly free, disinterested,
impartial and independent.
7

xxx xxx xxx
II
The preliminary examination conducted by respondent Judge does not accord with the
prevailing rules. He did it under the old rules, where the preliminary investigation by the
municipal judge has two stages: (1) the preliminary examination stage during which the
investigating judge determines whether there is reasonable ground to believe that an
offense has been committed and the accused is probably guilty thereof, so that a warrant
of arrest may be issued and the accused held for trial; and (2) the preliminary
investigation proper where the complaint or information is read to the accused after his
arrest and he is informed of the substance of the evidence adduced against him, after
which he is allowed to present evidence in his favor if he so desires. Presidential Decree
911 (further amending Sec. 1, R.A. 5180, as amended by P.D. 77) upon which the present
rule is based, removed the preliminary examination stage and integrated it into the
preliminary investigation proper. Now the proceedings consists of only one stage.
8

Respondent Judge did not conduct the requisite investigation prior to issuance of the
arrest warrant. The Rules require an examination in writing under oath in the form of
searching questions and answers.
9
The statements of witnesses were not sworn before
him but before the Provincial Prosecutor. The purported transcript of stenographic notes
do not bear the signature of the stenographer.
Moreover, he did not complete the preliminary investigation. He claimed to have examined
only the witnesses of the complainant. He issued a Resolution and forwarded the records
to the Provincial Prosecutor without giving the accused (petitioner) an opportunity to
submit counter- affidavits and supporting documents.
10

190

While it is true that the usual remedy to an irregular preliminary investigation is to ask
for a new preliminary investigation, such normal remedy would not be adequate to free
petitioner from the warrant of arrest which stemmed from that irregular investigation.
The Provincial Prosecution has no power to recall the warrant of arrest.
Meanwhile, after receipt of the records of the case from Judge Calvan as well as petitioner-
accused's counter-affidavits, the Ilocos Norte Provincial Prosecutor, instead of conducting a
preliminary investigation of his own, merely forwarded the said records to the Ombudsman for
the latter to conduct the same.
It appears that petitioner was only apprised of the foregoing inaction on the case by the
Provincial Prosecutor when he received on September 10, 1999 a Memorandum dated September
2, 1999,
11
filed by private respondent's counsel, requesting that the case, I.S. No. 99-548, "be
remanded to Office of the Ombudsman for preliminary investigation and, thereafter, for the
prosecution of the appropriate indictments before the Sandiganbayan."
12

On January 27, 2000, petitioner received a notice from the Ombudsman directing him to file his
counter-affidavits. Considering that petitioner had already submitted his counter-affidavits to the
Ilocos Norte Provincial Prosecutor as far back as August 20, 1999, he found the directive
superfluous and did not act on it.
On May 25, 2000, Graft Investigation Officer II Cynthia V. Vivar issued a
Resolution
13
recommending the filing of an Information for Murder against petitioner and four
others
14
before the Sandiganbayan. The recommendation was approved by the Ombudsman on
June 16, 2000.
15

It appears that petitioner belatedly received a copy of the foregoing Resolution of the graft
investigation officer only on June 21, 2000, and because he was thus effectively prevented from
seeking a reconsideration thereof, he then filed a Motion To Defer Issuance Of Warrant Of Arrest
pending determination of probable cause dated June 22, 2000.
16
The motion was denied by
Sandiganbayan's Fourth Division in the challenged Resolution of July 13, 2000.
17

Owing to the urgency of the matter, petitioner opted to directly resort to this recourse eschewing
the filing of a motion for reconsideration on the grounds that
(A) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN
IT RULED HIM TO HAVE NO STANDING TO OBJECT TO THE ISSUANCE OF A
WARRANT FOR HIS ARREST SINCE HE HAS NOT SUBMITTED TO ITS CUSTODY.
(B) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN
IT ISSUED A WARRANT FOR HIS ARREST ON THE BASIS OF AN INCOMPLETE
PRELIMINARY INVESTIGATION.
(C) THE OMBUDSMAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN IT
HURRIEDLY FILED AN INFORMATION FOR MURDER AGAINST HIM WITHOUT
SCRUTINIZING, OR EVEN ONLY READING, ALL THE EVIDENCE BEFORE HIM AND
WITHOUT CALLING FOR PRODUCTION OF THE CRITICAL PHYSICAL EVIDENCE.
(D) NOT ONLY DID THE SANDIGANBAYAN GRAVELY ABUSE ITS DISCRETION WHEN IT
RELIED ON AN INCOMPLETE PRELIMINARY INVESTIGATION CONDUCTED BY THE
OMBUDSMAN BUT IT FURTHER AGGRAVATED THIS GRAVE ABUSE WHEN IT
OMITTED ALTOGETHER TO CONDUCT ITS OWN INDEPENDENT REVIEW OF THE
EVIDENCE OF PROBABLE CAUSE.
191

The primordial question to be resolved in this controversy is whether or not the Ombudsman
followed the proper procedure in conducting a preliminary investigation and, corollarily, whether
or not petitioner was afforded an opportunity to be heard and to submit controverting evidence.
As this Court pointed out in Duterte v. Sandiganbayan,
18
"[t]he purpose of a preliminary
investigation or a previous inquiry of some kind, before an accused person is placed on trial, is to
secure the innocent against hasty, malicious and oppressive prosecution and to protect him from
an open and public accusation of a crime, from the trouble, expenses and anxiety of a public
trial.
19
It is also intended to protect the state from having to conduct useless and expensive
trials.
20
While the right is statutory rather than constitutional in its fundament, it is a
component part of due process in criminal justice. The right to have a preliminary investigation
conducted before being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is a substantive
right. To deny the accused's claim to a preliminary investigation would be to deprive him of the
full measure of his right to due process."
21

Although a preliminary investigation is not a trial and is not intended to usurp the function of
the trial court, it is not a casual affair. The officer conducting the same investigates or inquires
into the facts concerning the commission of the crime with the end in view of determining
whether or not an information may be prepared against the accused. Indeed, preliminary
investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of
the guilt of the accused must be adduced so that when the case is tried, the trial court may not
be bound as a matter of law to order an acquittal. A preliminary investigation has been called a
judicial inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when there is an
opportunity to be heard and for the production of and weighing of evidence, and a decision is
rendered thereon.
22

The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a
preliminary investigation is no less than a municipal judge or even a regional trial court judge.
While the investigating officer, strictly speaking, is not a "judge" by the nature of his functions,
he is and must be considered to be a quasi-judicial officer because a preliminary investigation is
considered a judicial proceeding.
23
A preliminary investigation should therefore
be scrupulously conducted so that the constitutional right to liberty of a potential accused can be
protected from any material damage.
24

Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence may
be considered. While even raw information may justify the initiation of an investigation, the stage
of preliminary investigation can be held only after sufficient evidence has been gathered and
evaluated warranting the eventual prosecution of the case in court.
25
In other words
. . . it is not enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of the
guarantee of freedom and fair play which are the birthrights of all who live in our country.
It is therefore imperative upon the fiscal or the judge, as the case may be, to relieve the
accused from the pain of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to form a
sufficient belief as to the guilt of the accused. Although there is no general formula or
fixed rule for the determination of probable cause since the same must be decided in the
light of the conditions obtaining in given situations and its existence depends to a large
degree upon the finding or opinion of the judge conducting the examination, such a
finding should not disregard the facts before the judge nor run counter to the clear dictates
of reason.
26

192

Measured vis-a-vis the foregoing legal yardsticks, we hold that the proper procedure in the
conduct of the preliminary investigation was not followed, for the following reasons:
First, the records show that the supposed preliminary investigation was conducted in
installments by at least three (3) different investigating officers, none of whom completed the
preliminary investigation. There was not one continuous proceeding but rather a case of passing
the buck, so to speak, the last one being the Ombudsman hurriedly throwing the buck to the
Sandiganbayan. This practice of "passing the buck" by the Ombudsman to the Sandiganbayan
was met with disapproval in Venus v. Desierto
27
where this Court speaking through then
Associate Justice, now Chief Justice Hilario G. Davide, Jr., trenchantly said that:
Upon a subsequent re-assessment of the evidence as a consequence of petitioner's motion
for reconsideration, another Special Prosecution Officer . . . found that petitioner had not
violated Sec. 3 (e) of R.A. No. 3019, as amended, he thus, recommended dismissal of the
case for want of probable cause and the filing of the corresponding manifestation to
inform the Sandiganbayan of the result of the motion for reconsideration. In this instance
the Special Prosecutor himself concurred with the finding. However, the Ombudsman
disapproved the recommendation as he found that probable cause existed but opted to
"allow the court to find absence of bad faith."
This marginal note of the Ombudsman simply meant that he believed that petitioner was
in bad faith. However, good faith is always presumed and the Chapter on Human
Relations of the Civil Code directs every person, inter alia, to observe good faith which,
according to the Commission, springs from the foundation of good conscience. Therefore,
he who charges another with bad faith must prove it. In this sense, the Ombudsman
should have first determined the facts indicative of bad faith. On the basis alone of the
finding and conclusion of Special Prosecution Officer III Victor Pascual, with which the
Special Prosecutor concurred, there was no showing of bad faith on the part of petitioner.
It was, therefore, error for the Ombudsman to "pass the buck", so to speak, to the
Sandiganbayan to find "absence of bad faith."
xxx xxx xxx.
28

Second, the charge against herein petitioner is Murder, a non-bailable offense. The gravity of the
offense alone, not to mention the fact that the principal accused is an incumbent mayor whose
imprisonment during the pendency of the case would deprive his constituents of their duly-
elected municipal executive, should have merited a deeper; and more thorough preliminary
investigation. The Ombudsman, however, did nothing of the sort and instead swallowed hook,
line and sinker the resolution and recommendation of Graft Investigation Officer II Cynthia V.
Vivar, among them the finding that, "aside from the averment of respondent that the victim fired
at him and he was only forced to fire back, no other evidence was adduced to indicate that such
was what happened."
29

There are, however, four affidavits on record
30
which state in categorical terms that it was the
victim who first fired at petitioner with his Armalite rifle and that petitioner merely returned fire. An
Armalite rifle and empty shells were recovered from the scene of the incident by the PNP and
impounded by it. According to the Physical Science Report No. C-147A-99,
31
some of the shells
correspond to the Armalite rifle, thereby indicating that the firearm was fired. The Ombudsman,
however, neither called for the production of the firearm and the empty shells, nor did he ask for
the production of the ballistic and laboratory examinations of the bloodstains on the Armalite
rifle despite the statement by the Provincial Fiscal of Ilocos Norte that these pieces of evidence
were all available.
32

There are, furthermore, other dubious circumstances which should have prompted the
Ombudsman to take a second, deeper look instead of adopting in toto the recommendation of
193

GIO II Vivar. Among these is the matter of the two (2) different autopsies on the cadaver of the
victim, one indicating that the victim sustained two (2) wounds only and the other showing that
the victim had three (3) wounds. The significance of this fact was not appreciated by the
Ombudsman who likewise glossed over the adamant refusal of the private respondent to subject
the cadaver of the victim to a paraffin test, despite the claims of the accused's witnesses that the
victim fired the Armalite rifle.
Given the foregoing circumstances, the Ombudsman for all practical purposes did an even worse
job than Judge Calvan for, by adopting in its entirety the findings of the investigating officer
despite its obvious flaws, he actually did nothing at all and, in effect, threw everything to the
Sandiganbayan for evaluation. This practice, as earlier stated, was not condoned in Venus v.
Desierto, supra. Nor will it be in this case. Prosecutors are endowed with ample powers in order
that they may properly fulfill their assigned role in the administration of justice. It should be
realized, however, that when a man is haled to court on a criminal charge, it brings in its wake
problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to
weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie
case before filing the information in court. Anything less would be a dereliction of duty.
33

Third, a person under preliminary investigation by the Ombudsman is entitled to file a motion for
reconsideration of the adverse resolution. This right is provided for in the very Rules of Procedure
of the Ombudsman,
34
which states:
SEC. 7. Motion for Reconsideration.
a) Only one motion for reconsideration or reinvestigation of an approved order or
resolution shall be allowed, the same to be filed within fifteen (15) days from notice
thereof with the Office of the Ombudsman or the Deputy Ombudsman as the case may
be.
b) No motion for reconsideration or reinvestigation shall be entertained after the
information shall have been filed in court, except upon order of the court wherein the
case was filed. (Emphasis supplied).
The filing of a motion for reconsideration is an integral part of the preliminary investigation
proper. There is no dispute that the Information was filed without first affording petitioner-
accused his right to file a motion for reconsideration. The denial thereof is tantamount to a
denial of the right itself to a preliminary investigation. This fact alone already renders
preliminary investigation conducted in this case incomplete. The inevitable conclusion is that the
petitioner was not only effectively denied the opportunity to file a motion for reconsideration of
the Ombudsman's final resolution but also deprived of his right to a full preliminary investigation
preparatory to the filing of the information against him.
35

As stated earlier, it appears that petitioner belatedly received a copy of the May 25, 2000
Resolution of Graft Investigation Officer II Cynthia V. Vivar only on June 21, 2000. Because he
was thus effectively precluded from seeking a reconsideration thereof, he then filed a Motion To
Defer Issuance Of Warrant Of Arrest pending determination of probable cause.
36
The
Sandiganbayan denied the motion in its challenged Resolution of July 13, 2000,
37
and forthwith
ordered the issuance of the warrant of arrest against petitioner. Suffice it to state in this regard
that such a deprivation of the right to a full preliminary investigation preparatory to the filing of
the information warrants the remand of the case to the Ombudsman for the completion thereof.
38

Fourth, it was patent error for the Sandiganbayan to have relied purely on the Ombudsman's
certification of probable cause given the prevailing facts of this case much more so in the face of
the latter's flawed report and one-sided factual findings. In the order of procedure for criminal
cases, the task of determining probable cause for purposes of issuing a warrant of arrest is a
194

responsibility which is exclusively reserved by the Constitution to judges.
39
People v.
Inting
40
clearly delineated the features of this constitutional mandate, viz: 1.] The determination
of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to
ascertain. Only the judge and the judge alone makes this determination; 2.] The preliminary
inquiry made by a prosecutor does not bind the judge. It merely assists him in making the
determination of probable cause. It is the report, the affidavits, the transcripts of stenographic
notes, if any, and all other supporting documents behind the prosecutor's certification which are
material in assisting the judge in his determination of probable cause; and 3.] Judges and
prosecutors alike should distinguish the preliminary inquiry which determines probable cause
for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains
whether the offender should be held for trial or be released. Even if the two inquiries be made in
one and the same proceeding, there should be no confusion about their objectives. The
determination of probable cause for purposes of issuing the warrant of arrest is made by the
judge. The preliminary investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or not he should
be subjected to the expense, rigors and embarrassment of trial is the function of the
prosecutor.
Stated differently, while the task of conducting a preliminary investigation is assigned either to
an inferior court magistrate or to a prosecutor,
41
only a judge may issue a warrant of arrest.
When the preliminary investigation is conducted by an investigating prosecutor, in this case the
Ombudsman,
42
the determination of probable cause by the investigating prosecutor cannot serve
as the sole basis for the issuance by the court of a warrant of arrest. This is because the court
with whom the information is filed is tasked to make its own independent determination of
probable cause for the issuance of the warrant of arrest. Indeed
. . . the Judge cannot ignore the clear words of the 1987 Constitution which requires . . .
probable cause to be personally determined by the judge . . . not by any other officer or
person.
xxx xxx xxx
The extent of the Judge's personal examination of the report and its annexes depends on
the circumstances of each case. We cannot determine beforehand how cursory or
exhaustive the Judge's examination should be.
The Judge has to exercise sound discretion for, after all, the personal determination is
vested in the Judge by the Constitution. It can be brief or as detailed as the
circumstances of each case may require. To be sure, the Judge must go beyond the
Prosecutor's certification and investigation report whenever necessary. He should call for
the complainant and witnesses themselves to answer the court's probing questions when
the circumstances so require.
xxx xxx xxx
We reiterate that in making the required personal determination, a Judge is not
precluded from relying on the evidence earlier gathered by responsible officers. The extent
of the reliance depends on the circumstances of each case and is subject to the Judge's
sound discretion. However, the Judge abuses that discretion when having no evidence
before him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a grave error when he relied solely on the
Prosecutor's certification and issued the questioned Order dated July 5, 1990 without
having before him any other basis for his personal determination of the existence of
probable cause.
43

195

All told, the Court cannot accept the Sandiganbayan's assertions of having found probable cause
on its own, considering the Ombudsman's defective report and findings, which merely relied on
the testimonies of the witnesses for the prosecution and disregarded the evidence for the
defense.
44
In Roberts v. CA,
45
the trial judge was chastised by the Court for issuing a warrant of
arrest without even reviewing the records of the preliminary investigation which were then still
with the Department of Justice. In the case at bar, it cannot be said that the Sandiganbayan
reviewed all the records forwarded to it by the Ombudsman considering the fact that the
preliminary investigation which was incomplete escaped its notice.
What the Sandiganbayan should have done, faced with such a slew of conflicting evidence from
the contending parties, was to take careful note of the contradictions in the testimonies of the
complainant's witnesses as well as the improbabilities in the prosecution evidence.
46
Certainly
. . . probable cause may not be established simply by showing that a trial judge
subjectively believes that he has good grounds for his action. Good faith is not enough. If
subjective good faith alone were the test, the constitutional protection would be
demeaned and the people would be "secure in their persons, houses, papers and effects"
only in the fallible discretion of the judge.
47
On the contrary, the probable cause test is an
objective one, for in order that there be probable cause the facts and circumstances must
be such as would warrant a belief by a reasonably discreet and prudent man that the
accused is guilty of the crime which has just been committed.
48
This, as we said is the
standard. x x x
xxx xxx xxx
The sovereign power has the inherent right to protect itself and its people from the vicious
acts which endanger the proper administration of justice; hence the State has every right
to prosecute and punish violators of the law. This is essential for its self-preservation, nay
its very existence. But this does not confer a license for pointless assaults on its citizens.
The right of the State to prosecute is not a carte blanche for government agents to defy
and disregard the rights of its citizens under the Constitution. Confinement, regardless of
duration, is too a high a price to pay for reckless and impulsive prosecution. x x x
The purpose of the Bill of Rights is to protect the people against arbitrary and
discriminatory use of political power. This bundle of rights guarantees the preservation of
our natural rights which include personal liberty and security against invasion by the
government or any of its branches or instrumentalities. Certainly, in the hierarchy of
rights, the Bill of Rights takes precedence over the right of the State to prosecute, and
when weighed against each other, the scales of justice tilt towards the former. Thus, relief
may be availed of to stop the purported enforcement of criminal law where it is necessary
to provide for an orderly administration of justice, to prevent the use of the strong arm of
the law in an oppressive and vindictive manner, and to afford adequate protection to
constitutional rights.
49

In this case, the undue haste in filing of the information against petitioner cannot be ignored.
From the gathering of evidence until the termination of the preliminary investigation, it appears
that the state prosecutors were overly-eager to file the case and to secure a warrant of arrest of
petitioner without bail and his consequent detention. There can be no gainsaying the fact that
the task of ridding society of criminals and misfits and sending them to jail in the hope that they
will in the future reform and be productive members of the community rests both on the
judiciousness of judges and the prudence of the prosecutors. There is however, a standard in the
determination of the existence of probable cause. The determination has not measured up to that
standard this case.
WHEREFORE, in view of all the foregoing, judgment is hereby rendered:
196

1.] SETTING ASIDE the Resolutions of the Sandiganbayan dated July 13, 2000 and the
Resolution of Graft Investigation Officer II Cynthia V. Vivar dated May 25, 2000 in Criminal Case
No. 26115;
2.] Ordering the Sandiganbayan to QUASH the warrant of arrest it issued against petitioner;
3.] REMANDING the case to the Ombudsman for completion of the preliminary investigation.
SO ORDERED.
Davide, Jr., C. J., Puno, Kapunan and Pardo, JJ., concur.


Footnotes
1
Rollo, p. 97.
2
Ibid, p. 98.
3
Id., pp. 99-100.
4
Id., pp. 102-107.
5
Id., p. 101.
6
Rollo, pp. 109-121.
7
Gutierrez v. Santos, 2 SCRA 249, 254 [1961].
8
Sangguniang Bayan v. Albano, 260 SCRA 566 [1996].
9
Roberts, Jr. v. CA, 254 SCRA 307 [1996]; Section 6 (b), Rule 112, Rules of Court.
10
Section 3 (b), Rule 112, Rules of Court.
11
Rollo, pp. 122-124.
12
Id., p. 124.
13
Id., pp. 43-49.
14
Id., pp. 50-51.
15
Id., pp. 49,51.
16
Id., pp. 52-58.
17
Id., pp. 38-42.
18
289 SCRA 721, 737-738 [1998].
197

19
Rodis v. Sandiganbayan, 166 SCRA 618 [1988]; People v. Poculan, 167 SCRA 155
[1988].
20
Tandioc v. Resultan, 175 SCRA 37 [1989].
21
Doromal v. Sandiganbayan, 177 SCRA 354 [1980]; Go v. CA, 206 SCRA 138 [1992].
22
Cojuangco v. PCGG, 190 SCRA 226 [1990].
23
Cruz v. People, 237 SCRA 439 [1994].
24
Webb v. De Leon, 247 SCRA 652 [1995].
25
Olivas v. Office of the Ombudsman, 239 SCRA 283 [1994].
26
Herrera O.M. Remedial Law, Vol. IV, 2001 ed., p. 231, citing La Chemise Lacoste S.A. v.
Fernandez, 129 SCRA 391 [1984] and Ortiz v. Palaypon, 234 SCRA 391 [1994].
27
298 SCRA 196, 214-216 [1998].
28
Salonga v. Cruz, 134 SCRA 438, 461-462 [1985], citing Hashim v. Boncan, 71 Phil. 216,
225 [1941];Trocio v. Manta, 118 SCRA 241, 245 [1982].
29
Resolution dated 25 May 2000, p. 5; Rollo, p. 48.
30
Rollo, pp. 131-144; Affidavits of Merly G. Bacud, Elmer Avedao, Gilbert G. Ortega and
Eduardo Lorenzo, attached as Annexes I, J, K, and L of Reply to Opposition (Annex F,
Petition).
31
Id., p. 168.
32
Id., pp. 160-161.
33
Bernardo v. Mendoza, 90 SCRA 214 [1979]; Vda. de Jacob v. Puno, 131 SCRA 148-149
[1984].
34
Administrative Order No. 7.
35
Torralba v. Sandiganbayan, 230 SCRA 33 [1994].
36
Rollo, pp. 52-58.
37
Ibid., pp. 38-42.
38
Vasquez v. Hobilla-Alinio, 271 SCRA 67 [1997]: Torralba v. Sandiganbayan, supra.
39
Article III, Section 2, Constitution.
40
187 SCRA 788, 792-793 [1990].
41
Section 2, Rule 112, 2000 Revised Rules on Criminal Procedure.
198

42
See Section 11 (4), R.A. No. 6770 otherwise known as the Ombudsman Act of 1989.
43
Lim, Sr. v. Felix, 194 SCRA 292, 305-307 [1991].
44
See People v. Villarez, G.R. No. 133795, 27 July 2000, 336 SCRA 515, 536.
45
254 SCRA 307 [1996].
46
Allado v. Diokno, 232 SCRA 192 [1994].
47
Beck v. Ohio, 379 U.S. 89, 85 S Ct. 223, 13 L Ed. 2d 142 [1964].
48
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d 889 [1968].
49
Allado v. Diokno, supra, pp. 206-207, 209-210.


















199

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 81756 October 21, 1991
NICOMEDES SILVA @ " Comedes", MARLON SILVA, @ "Tama" and ANTONIETA
SILVA, petitioners,
vs.
THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS ORIENTAL,
BRANCH XXXIII, DUMAGUETE CITY, respondent.
Marcelo G. Flores for petitioners.

FERNAN, C.J.:p
In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1
issued by respondent Judge as well as the return of the money in the amount of P1,231.00
seized from petitioner Antonieta Silva.
The antecedent facts are as follows:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in
Dumaguete City, Negros Oriental, filed an "Application for Search Warrant" with the Regional
Trial Court, Branch XXXIII, Dumaguete City against petitioners Nicomedes Silva and Marlon
Silva. 1 This application was accompanied by a "Deposition of Witness" executed by Pfc. Arthur
M. Alcoran and Pat. Leon T. Quindo, also dated June 13, 1986. 2
On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court,
Branch XXXIII, Dumaguete City, pursuant to the said "Application for Search Warrant" and
"Deposition of Witness", issued Search Warrant No. 1, directing the aforesaid police officers to
search the room of Marlon Silva in the residence of Nicomedes Silva for violation of Republic Act
No. 6425, otherwise known as the Dangerous Drugs Act of 1972. as amended. Pertinent portions
of Search Warrant No. 1 read as follows:
It appearing to the satisfaction of the undersigned after examining oath
(sic) MSGT. Ranulfo T. Villamor, Jr. and his witnesses (sic) Pfc. Arthur M. Alcoran
and Pat. Leon T. Quindo that there is probable cause to believe that possession
and control of Marijuana dried leaves, cigarettes, joint has been committed or is
about to be committed and that there are good and sufficient reasons to believe
that marijuana dried leaves, cigarettes, joint has in possession and/or control
at Tama's Room (Rgt. side lst Floor) located at Nono-Limbaga Drive, Tanjay, Neg.
Or. which is/are:
X (Subject of the offense stated above
(Stolen or embezzled or other proceeds of fruits of the offense;
200

X (Used or intended to be used as means of committing an offense.
You are hereby commanded to make an immediate search at any time of the day
(night) of the room of Tama Silva residence of his father Comedes Silva to
open (sic) aparadors, lockers, cabinets, cartoons, containers, forthwith seize and
take possession of the following property Marijuana dried leaves, cigarettes,
joint and bring the said property to the undersigned to be dealt with as the law
directs. 3
In the course of the search, the serving officers also seized money belonging to Antonieta Silva in
the amount of P1,231.40.
On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the
grounds that the search warrant only authorized the serving officers to seize marijuana dried
leaves, cigarettes and joint, and that said officers failed or refused to make a return of the said
search warrant in gross violation of Section 11, Rule 126 of the Rules of Court. 4
Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court
"holds in abeyance the disposition of the said amount of P1,231.40 pending the filing of
appropriate charges in connection with the search warrant." 5
On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that
(1) it was issued on the sole basis of a mimeographed "Application for Search Warrant" and
"Deposition of Witness", which were accomplished by merely filling in the blanks and (2) the
judge failed to personally examine the complainant and witnesses by searching questions and
answers in violation of Section 3, Rule 126 of the Rules of Court. 6
On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had
replaced retired Judge Ontal, issued an Order denying the motion for lack of merit, finding the
requisites necessary for the issuance of a valid search warrant duly complied with. 7
A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by
Judge Cruz in an order dated October 19, 1987.
Hence, this special civil action for certiorari.
Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that
respondent Judge should be viewed to have acted without or in excess of jurisdiction, or
committed grave abuse of discretion amounting to lack of jurisdiction when he issued the Order
dated August 11, 1987, denying their motion to quash Search Warrant No, 1.
We rule for petitioners.
Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal
liberty and security of homes against unreasonable searches and seizures. This section provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
201

The purpose of the constitutional provision against unlawful searches and seizures is to prevent
violations of private security in person and property, and unlawful invasion of the sanctity of the
home, by officers of the law acting under legislative or judicial sanction, and to give remedy
against such usurpations when attempted. 8
Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance
of a search warrant, to wit:
SEC. 3. Requisite for issuing search warrant. A search warrant shall not issue
but upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized.
SEC. 4. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and any witnesses he may produce on
facts personally known to them and attach to the record their sworn statements
together with any affidavits submitted.
Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a
search warrant, determine whether there is probable cause by examining the complainant and
witnesses through searching questions and answers.
In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this
Court defined "probable cause" as follows:
The "probable cause" for a valid search warrant, has been defined "as such facts
and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed, and that objects sought in connection
with the offense are in the place sought to be searched". This probable cause must
be shown to be within the personal knowledge of the complainant or the witnesses
he may produce and not based on mere hearsay.
In the case at bar, we have carefully examined the questioned search warrant as well as the
"Application for Search Warrant" and "Deposition of Witness", and found that Judge Ontal failed
to comply with the legal requirement that he must examine the applicant and his witnesses in
the form of searching questions and answers in order to determine the existence of probable
cause. The joint "Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was
submitted together with the "Application for Search Warrant" contained, for the most part
suggestive questions answerable by merely placing "yes" or "no" in the blanks provided thereon.
In fact there were only four (4) questions asked, to wit:
Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the
applicant for a search warrant?
A Yes, sir.
Q Do you have personal knowledge that the said premises subject
of the offense stated above, and other proceeds of fruit of the
offense, used or obtain (sic) or intended to be used as means of
committing an offense?
A Yes, sir.
202

Q Do you know personally who is/are the person who has/have the
property in his/their possession and control?
A Yes, sir.
Q How did you know all this (sic) things?
A Through discreet surveillance. 9
The above deposition did not only contain leading questions but it was also very broad. The
questions propounded to the witnesses were in fact, not probing but were merely routinary. The
deposition was already mimeogragphed and all that the witnesses had to do was fill in their
answers on the blanks provided.
In the case of Nolasco vs. Pao, G.R. No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court
held:
The "probable cause" required to justify the issuance of a search warrant
comprehends such facts and circumstances as will induce a cautious man to rely
upon them and act in pursuant thereof. Of the 8 questions asked, the 1st, 2nd
and 4th pertain to identity. The 3rd and 5th are leading not searching questions.
The 6th, 7th and 8th refer to the description of the personalities to be seized,
which is identical to that in the Search Warrant and suffers from the same lack of
particularity. The examination conducted was general in nature and merely
repetitious of the deposition of said witness. Mere generalization will not suffice
and does not satisfy the requirements or probable cause upon which a warrant
may issue.
Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as
invalid due to the failure of the judge to examine the witness in the form of searching questions
and answers. Pertinent portion of the decision reads:
Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was
too brief and short. Respondent Judge did not examine him "in the form of
searching questions and answers". On the contrary, the questions asked were
leading as they called for a simple "yes" or "no" answer. As held in Quintero vs.
NBI,"the questions propounded by respondent Executive Judge to the applicant's
witness' are not sufficiently searching to establish probable cause. Asking of
leading questions to the deponent in an application for search warrant, and
conducting of examination in a general manner, would not satisfy the
requirements for issuance of a valid search warrant. 10
Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and
statutory requirement that he must determine the existence of probable cause by personally
examining the applicant and his witnesses in the form of searching questions and answers. His
failure to comply with this requirement constitutes grave abuse of discretion. As declared
in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, "the capricious
disregard by the judge in not complying with the requirements before issuance of search
warrants constitutes abuse of discretion".
The officers implementing the search warrant clearly abused their authority when they seized the
money of Antonieta Silva. This is highly irregular considering that Antonieta Silva was not even
named as one of the respondents, that the warrant did not indicate the seizure of money but only
of marijuana leaves, cigarettes and joints, and that the search warrant was issued for the seizure
of personal property (a) subject of the offense and (b) used or intended to be used as means of
203

committing an offense and NOT for personal property stolen or embezzled or other proceeds of
fruits of the offense. Thus, the then presiding Judge Ontal likewise abused his discretion when
he rejected the motion of petitioner Antonieta Silva seeking the return of her seized money.
WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void.
Respondent Judge of the Regional Trial Court of Negros Oriental, Branch XXXIII is directed to
order the return to petitioner Antonieta Silva of the amount of P1,231.40 which had earlier been
seized from her by virtue of the illegal search warrant. This decision is immediately executory. No
costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

# Footnotes
1 Rollo, p. 20.
2 Rollo, p, 21.
3 Rollo, p. 22.
4 Rollo, pp. 23-24.
5 Rollo, p. 25.
6 Rollo, pp. 26-27.
7 Rollo, p. 29
8 Alvero v. Dizon, 76 Phil. 637 (1946).
9 Rollo, p. 21.
10 Supra at p. 79.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-95630 June 18, 1992
204

SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners,
vs.
THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at
Davao City; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC-Criminal
Investigation Service,respondents.

PARAS, J.:
This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of the Rules
of Court:certiorari, to review the Order of the respondent Judge dated October 2, 1990 denying
herein petitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge to
resolve petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings
on the ground that the legal basis therefore is unconstitutional for being violative of the due
process and equal protection clauses of the Constitution.
The facts of this case are as follows:
Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., Skyline
Village. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was promoted to the
position of Assistant Administrator of the Social Security System sometime in June, 1988, he
and his family transferred to 130 K-8th St., East Kamias, Quezon City, where they are presently
residing. The care and upkeep of their residence in Davao City was left to two (2) houseboys,
Jimmy Favia and Eric Burgos, who had their assigned quarters at a portion of the premises. The
Veroys would occasionally send money to Edna Soguilon for the salary of the said houseboys and
other expenses for the upkeep of their house. While the Veroys had the keys to the interior of the
house, only the key to the kitchen, where the circuit breakers were located, was entrusted to
Edna Soguilon to give her access in case of an emergency. Hence, since 1988, the key to the
master's bedroom as well as the keys to the children's rooms were retained by herein Petitioners
so that neither Edna Soguilon nor the caretakers could enter the house.
On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon a
directive issued by Metrodiscom Commander Col. Franco Calida, raided the house of herein
petitioners in Davao City on information that the said residence was being used as a safehouse of
rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter
the house since the owner was not present and they did not have a search warrant. Petitioner
Ma. Luisa was contacted by telephone in her Quezon City residence by Capt. Obrero to ask
permission to search the house in Davao City as it was reportedly being used as a hideout and
recruitment center of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to
Davao City to witness the search but relented if the search would not be conducted in the
presence of Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a long time family
friend of the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to
Major Macasaet who answered that Ma. Luisa Veroy has called him twice by telephone on the
matter and that the permission was given on the condition that the search be conducted in his
presence.
The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners in
Skyline Village to conduct the search pursuant to the authority granted by petitioner Ma. Luisa
Veroy. The caretakers facilitated their entry into the yard, and using the key entrusted to Edna
Soguilon, they were able to gain entrance into the kitchen. However, a locksmith by the name of
George Badiang had to be employed to open the padlock of the door leading to the children's
room. Capt. Obrero and Major Macasaet then entered the children's room and conducted the
search. Capt. Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live
bullets in a black clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing
205

printed materials of RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the
petition) (Rollo, pp. 49-55) were also found in the children's room. A search of the children's
recreation and study area revealed a big travelling bag containing assorted polo shirts, men's
brief, two (2) pieces polo barong and short sleeve striped gray polo. sweat shirt, two (2) pairs
men's socks, a towel made in U.S.A., one blanket, a small black bag, Gandhi brand, containing a
book entitled "Islamic Revolution Future Path of the Nation", a road map of the Philippines, a
telescope, a plastic bag containing assorted medicines and religious pamphlets was found in the
master's bedroom. Sgt. Leo Justalero was instructed by Capt. Obrero to make an inventory and
receipt of the articles seized, in the house (Annex "F" of the Petition, Rollo, p. 48). Said receipt
was signed by Eric Burgos, one of the caretakers, and George Badiang, the locksmith, as
witnesses. Sgt. Justalero turned over the articles to Sgt. Rodolfo Urbano at the police station.
The case was referred for preliminary investigation to Quezon City Assistant Prosecutor Rodolfo
Ponferrada who was designated Acting Provincial Prosecutor for Davao City by the Department of
Justice through Department Order No. 88 dated May 16, 1990. In a resolution dated August 6,
1990, Fiscal Ponferrada recommended the filing of an information against herein petitioners for
Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in
Furtherance of Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990. an
Information for the said offense was filed by the Office of the City Prosecutor of Davao City before
the Regional Trial Court, 11th Judicial Region, Davao City, docketed as Criminal Case No.
20595-90 and entitled"People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa
Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail was recommended by the prosecution.
The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by the
petitioners on August 13, 1990. On the same day, the latter filed a Motion for Bail before herein
respondent Judge Layague which was denied on August 17, 1990 for being premature since at
that time, petitioners had not yet been arrested. Despite the fact that the warrants for their
arrest have not yet been served on them, herein petitioners voluntarily surrendered themselves
to Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated the complaint.
However, the latter refused to receive them on the ground that his office has not yet received
copies of their warrants of arrest.
In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospital
for various ailments brought about or aggravated by the stress and anxiety caused by the filing
of the criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted their request that
they be allowed to be confined at the hospital and placed under guard thereat.
In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made
its return to the trial court informing the latter of the voluntary surrender of herein petitioners
and the fact that they were under hospital confinement. Herein Petitioner reiterated their Motion
for Bail. In an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing
for the Motion for Ball was set for August 31, 1990 to enable the prosecution to present evidence
it opposition to said motion. The prosecution filed its written opposition (Annex "N" of the
Petition, Rollo, p. 75) on August 28, 1990, arguing that the evidence of petitioners' guilt was
strong and thereafter presented its evidence.
On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein
petitioners on October 1, 1990 for arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon
their arraignment, herein Petitioners entered a plea of not guilty and filed an "Urgent Motion for
Hospital Confinement" (Annex "OO" of the Petition Rollo, p. 77) which was denied by the court in
its Order dated October 2, 1990 (Annex "P" of the Petition,Rollo, p. 80). It likewise ordered their
commitment at the Davao City Rehabilitation Center, Ma-a, Davao City pending trial on the
merits. Herein petitioners argued orally a motion for reconsideration which was opposed by the
prosecution. At the conclusion thereof, the court a quo issued a second order annex "Q" of the
Petition, Rollo, p. 83) denying then motion for reconsideration and as to the alternative prayer to
reopen the motion for hospital confinement, set the continuance thereof to October 17, 1990. It
206

was further ordered that the petitioners shall remain under the custody of the PC-CIS pending
resolution of the case.
Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical condition
remained erratic. On or about October 18, 1990, herein petitioners were informed that Brig. Gen.
Dumlao had issued a directive for their transfer from the St. Luke's Hospital to Camp Crame on
the basis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made
representations that the tenor of the court order warranted maintenance of the status quo, i.e.,
they were to continue their hospital confinement. However, Brig, Gen. Dumlao informed them
that unless otherwise restrained by the court, they would proceed with their transfer pursuant to
the order of the trial court.
Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining Order,
effective immediately and continuing until further orders from this Court, ordering: (a)
respondent Hon. William L. Layague to refrain from further proceeding with petitioners' "Motion
for Hospital Confinement" in Criminal Case No. 20595-90 entitled "People of the Philippines v.
Leopoldo Veroy and Ma. Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain
from transferring petitioners from the St. Luke's Hospital (Rollo, pp. 84-A to 84-C).
On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bail
(Annex "A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners filed a Supplemental
Petition on November 7, 1990 (Rollo, P. 105) and a Second Supplemental Petition on November
16, 1990 (Rollo, p. 120) which sought to review the order of the trial court dated November 2,
1990 denying their petition for bail.
Acting on the Supplemental Petition filed by Petitioners and taking into consideration several
factors such as: a) that the possibility that they will flee or evade the processes of the court is
fairly remote; b) their poor medical condition; and c) the matters in their Second Supplemental
Petition especially since the prosecution's evidence refers to constructive possession of the
disputed firearms in Davao City through the two (2) caretakers while petitioners lived in Manila
since 1988, this Court, on November 20, 1990, granted petitioners' provisional liberty and set the
bail bond at P20,000.00 each (Rollo, p. 141). Petitioners posted a cash bond in the said amount
on November 23, 1990 (Rollo, pp. 143-145).
The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted their
Comment dated December 28, 1990 (Rollo, pp. 182-191) as their Memorandum while, petitioners
filed their Memorandum on September 9, 1991 (Rollo, pp. 218-269).
As submitted by the respondents, and accepted by petitioners, the petition for mandamus to
compel respondent Judge to resolve petitioners' Motion for Bail, and the petition for certiorari to
review the order of respondent judge initially denying their Motion for Hospital Confinement,
were rendered moot and academic by the resolutions of this Court dated November 20, 1990 and
October 25, 1990, respectively. What remains to be resolved is the petition for prohibition where
petitioners raised the following issues:
1. Presidential Decree No. 1866, or at least the third paragraph of Section 1
thereof, is unconstitutional for being violative of the due process and equal
protection clauses of the Constitution;
2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968;
3. Assuming the validity of Presidential Decree No. 1866 the respondent judge
gravely abused his discretion in admitting in evidence certain articles which were
clearly inadmissible for being violative of the prohibition against unreasonable
searches and seizures.
207

The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case
of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held
that the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential
Decree No. 1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide
a possibility of a double jeopardy.
Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No.
1866 is bereft of merit. It is a cardinal rule of statutory construction that where the words and
phrases of a statute are not obscure or ambiguous. its meaning and the intention of the
legislature must be determined from the language employed, and where there is no ambiguity in
the words, there is no room for construction (Provincial Board of Cebu v. Presiding Judge of
Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A perusal of the
aforementioned laws would reveal that the legislature provided for two (2) distinct offenses: (1)
illegal possession of firearms under Presidential Decree No. 1866; and (2) rebellion, coup d' etat,
sedition and disloyalty under Republic Act 6968; evidently involving different subjects which
were not clearly shown to have eliminated the others.
But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or
vague terms. The terms "deal in", "acquire", "dispose" or "possess" are capable of various
interpretations such that there is no definiteness as to whether or not the definition includes
"constructive possession" or how the concept of constructive possession should be applied.
Petitioners were not found in actual possession of the firearm and ammunitions. They were in
Quezon City while the prohibited articles were found in Davao City. Yet they were being charged
under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the
items were found belongs to them (Memorandum for Petitioners, Rollo, pp. 242-244).
Otherwise stated, other than their ownership of the house in Skyline Village, there was no other
evidence whatsoever that herein petitioners possessed or had in their control the items seized
(Ibid., pp. 248-250). Neither was it shown that they had the intention to possess the Firearms or
to further rebellion (Ibid., P. 252).
In a similar case, the revolver in question was found in appellant's store and the question arouse
whether he had possession or custody of it within the meaning of the law.
This Court held that:
The animus possidendi must be proved in opium cases where the prohibited drug
was found on the premises of the accused and the same rule is applicable to the
possession of firearms. The appellant denied all knowledge of the existence of the
revolver, and the Government's principal witness stated that there were a number
of employees in the store. The only testimony which tends to show that the
appellant had the possession or custody of this revolver is the inference drawn
from the fact that it was found in his store, but we think that this inference is
overcome by the positive testimony of the appellant, when considered with the fact
that there were a number of employees in the store, who, of course, could have
placed the revolver in the secret place where it was found without the knowledge
of the appellant. At least there is a very serious doubt whether he knew of the
existence of this revolver. In such case the doubt must be resolved in favor of the
appellant. (U.S. v. Jose and Tan Bo., 34 Phil. 724 [1916])
But more importantly, petitioners question the admissibility in evidence of the articles seized in
violation of their constitutional right against unreasonable search and seizure.
Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy
to break open the door of their residence, it was merely for the purpose of ascertaining thereat
208

the presence of the alleged "rebel" soldiers. The permission did not include any authority to
conduct a room to room search once inside the house. The items taken were, therefore, products
of an illegal search, violative of their constitutional rights As such, they are inadmissible in
evidence against them.
The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures (Article III, Section 2 of the 1987
Constitution). However, the rule that searches and seizures must be supported by a valid
warrant is not an absolute one. Among the recognized exceptions thereto are: (1) a search
incidental to an arrest; (2) a search of a moving vehicle; and (3) seizure of evidence in plain view
(People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193 SCRA 122]).
None of these exceptions pertains to the case at bar. The reason for searching the house of
herein petitioners is that it was reportedly being used as a hideout and recruitment center for
rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house
because he did not have a search warrant and the owners were not present. This shows that he
himself recognized the need for a search warrant, hence, he did not persist in entering the house
but rather contacted the Veroys to seek permission to enter the same. Permission was indeed
granted by Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel
soldiers. Under the circumstances it is undeniable that the police officers had ample time to
procure a search warrant but did not.
In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People v. Aminnudin,
G.R. No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro, G.R. No. L-69401, June 23, 1987
[151 SCRA 279]), warrantless searches were declared illegal because the officials conducting the
search had every opportunity to secure a search Warrant. The objects seized, being products of
illegal searches, were inadmissible in evidence in the criminal actions subsequently instituted
against the accused-appellants (People v. Cendana, G.R. No. 84715, October 17, 1990 [190
SCRA 538]).
Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not
follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala
prohibita but the subjects of this kind of offense may not be summarily seized simply because
they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and
no exception being applicable, the articles seized were confiscated illegally and are therefore
protected by the exclusionary principle. They cannot be used as evidence against the petitioners
in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145
SCRA 689-690 [1986]). Besides, assuming that there was indeed a search warrant, still in mala
prohibita, while there is no need of criminal intent, there must be knowledge that the same
existed. Without the knowledge or voluntariness there is no crime.
PREMISES CONSIDERED, the petition as granted and the criminal case against the petitioners
for illegal possession of firearms is DISMISSED.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado,
Davide, Jr., Romero and Bellosillo, JJ., concur.
Nocon, J., is on leave.

209

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 109633 July 20, 1994
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.
The Solicitor General for plaintiff-appellee.
Topacio and Topacio for accused-appellants.

MELO, J.:
Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth
Judicial Region stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in
Criminal Case No. 236-91 and Illegal Sale of Regulated Drugs in Criminal Case No. 237-91,
under two informations reading, respectively, as follows:
Criminal Case No. 236-91
That on or about September 4, 1991, in the City of Cavite, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, without legal authority, did, then and there, willfully, unlawfully,
feloniously and knowingly have in his possession and control a homemade
(paltik)caliber .22 revolver with three (3) live ammunition.
Contrary to law.
Criminal Case No. 237-91
That on or about September 4, 1991, in the City of Cavite, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, without legal authority, did, then and there, willfully, unlawfully,
feloniously and knowingly sell to a poseur buyer an aluminum foil containing
Methamphetamine Hydrochloride also known as "Shabu", a regulated drug.
Contrary to law.
(pp. 20-21, Rollo.)
Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of
the two cases, the court a quo rendered a decision, the dispositive portion of which reads:
210

WHEREFORE, in view of the foregoing, the Court finds the accused Normando del
Rosario y Lopez guilty beyond reasonable doubt in the above-entitled cases and he
is hereby sentenced to undergo imprisonment: in Crim. Case No. 236-91 for
Violation of P.D. 1866 of Seventeen (17) years, Four (4) months and One (1) day
of reclusion temporal, as minimum to Twenty (20) years of reclusion temporal, as
maximum and in Crim. Case No. 237-91 for a violation of Section 15, Article III of
Republic Act 6425, as amended of life imprisonment and to pay a fine of
P30,000.00, without subsidiary imprisonment in case of insolvency and to pay the
costs in both cases.
The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered
confiscated in favor of the government.
(pp. 28-29, Rollo.)
From said decision, the instant appeal has been interposed.
The prosecution's version of the case, as set forth in appellee's brief, is as follows:
Upon application of SPO3 Raymundo Untiveros of the Philippine National Police
(PNP) of Cavite City, Regional Trial Court Judge Arturo de Guia issued in the
morning of September 4, 1991 a search warrant
(Exh. T, p. 50, Rec. Crim. Case No. 237-91) authorizing the search and seizure
of an "undetermined quantity of Methamphetamine Hydrochloride commonly
known as shabu and its paraphernalias" in the premises of appellant's house
located at 828 R. Basa St., San Roque, Cavite City. However, the search warrant
was not implemented immediately due to the lack of police personnel to form the
raiding team (pp. 4, 7, tsn., Feb. 4, 1992).
At about 9 o'clock in the evening of that day, a raiding team was finally organized.
SPO3 Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1
Eduardo Novero, SPO3 Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio
and SPO2 Villegas as members
(pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).
In the final briefing of the raiding team at the police station, it was agreed upon
that PO1 Venerando Luna will buy shabu from appellant and after his return from
appellant's house, the raiding team will implement the search warrant (p. 10, tsn.,
Feb. 4, 1992; pp. 17-18, tsn., Dec. 11, 1991). A marked money consisting of a
P100 bill bearing serial no. PQ 329406
(Exh. P, p. 51, Rec.) was given by the Station Commander to PO1 Luna and
entered in the police logbook (p. 12, Feb. 4, 1992). PO1 Luna with a companion
proceeded to appellant's house to implement the search warrant. Barangay Capt.
Maigue, Norma del Rosario and appellant witnessed the search at appellant's
house (p. 10, tsn., Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco found a
black canister containing shabu, an aluminum foil, a paltik .22 caliber (Exh. O)
atop the TV set, three used ammunitions in a cup and three wallets (Exhs. Q, R,
S), one containing the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1992).
SPO1 Novero found inside a show box aluminum foils, napkins and a burner (p. 9,
tsn., March 11, 1992). SPO3 de la Cruz turned over the wallet containing the
marked money to PO3 Onrubio (p. 8, 32, tsn., Jan. 7, 1992). The seized items
were photographed thereat by Fred Agana and then turned over to PO3 Onrubio
(pp. 8, 32, tsn., Jan. 7, 1992). SPO3 Untiveros issued receipts (Exhs. V, V-1, pp.
53-54, Rec.) for the seized items with Barangay Capt. Maigue and appellant's
211

sister Norma as signing witnesses. He also made a return (Exh. U, p. 52, Rec.) of
the seized items to the court (pp. 11-155, tsn., Feb. 18, 1992.).
At police station, the seized items were taped and initialed by SPO3 de la Cruz (p.
33, tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco,
forwarded to NBI Forensic Chemist Mary Ann Aranas for laboratory analysis the
aluminum foil (Exhs. A, J, pp. 37, 46, Rec.) containing suspected shabu bought by
PO1 Luna from appellant in the
buy-bust operation as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.)
containing suspected marijuana which were confiscated by virtue of the search
warrant.
The findings of NBI Forensic Chemist Aranas disclosed that all the specimen
submitted to her for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave
positive results for Methamphetamine Hydrochloride (pp. 2-9, tsn., Dec. 3, 1991;
Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).
(pp. 102-105, Rollo.)
Carefully evaluating the evidence on record, we believe that the prosecution has failed to prove
the guilt of accused-appellant. Much is to be desired in the manner the police authorities effected
the arrest of accused-appellant and the same observation may be made with regard to the way
the prosecution conducted its case.
Foremost among the inadequacies of the prosecution is its failure to call to the witness stand
PO1 Venerando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to
establish the purported sale of shabu by accused-appellant to Venerando Luna, the supposed
poseur-buyer. The omission to present the poseur-buyer casts serious doubts that an illegal sale
of a dangerous drug actually took place.
The trial court gave much weight to the testimonies of the police members of the
buy-bust operation. However, the prosecution did not present as witness the
supposed poseur-buyer. Such omission casts serious doubt on appellant's guilt
because without the testimony of the
poseur-buyer, there is no convincing evidence to show that appellant sold
marijuana. The testimonies of the rest of the buy-bust operation are hearsay in
view of the fact that the poseur-buyer, was never presented at the trial. There was
even no testimony that when the accused-appellant handed the stuff to the
poseur-buyer that the latter in turn handed the marked money. The failure of the
prosecution to present the alleged buyer of the marijuana was a fatal flaw in the
case against the accused.
(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])
The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged
Poseur-buyer, bought shabu from accused-appellant was derived solely from what Luna
supposedly told him (pp. 19-20, tsn., December 11, 1991) and, therefore, is patently hearsay
evidence, without any evidentiary weight whatsoever. Likewise, the statements of prosecution
witnesses Policemen Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to
the alleged sale of shabu are hearsay, without weight, as all of them were not present during the
alleged sale.
According to the version of the prosecution, during the alleged buy-bust operation, accused-
appellant handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and
Luna in turn paid accused-appellant a marked P100 bill and then returned to the police station
212

and informed the raiding team that he had already bought the shabu from accused-appellant.
Thereupon, the raiding team proceeded to the house of accused-appellant to implement the
search warrant. The version of the prosecution is highly incredible. The record is devoid of any
reason why the police officers did not make any attempt to arrest accused-appellant at the time
he allegedly sold the shabu to Veneracion Luna who was accompanied by another police officer.
That was the opportune moment to arrest accused-appellant. The version foisted by the
prosecution upon this Court is contrary to human experience in the ordinary course of human
conduct. The usual procedure in a buy-bust operation is for the police officers to arrest the
pusher of drugs at the very moment he hands over the dangerous drug to the poseur-buyer. That
is the very reason why such a police operation is called a "buy-bust" operation. The police
poseur-buyer "buys" dangerous drugs from the pusher and "busts" (arrests) him the moment the
pusher hands over the drug to the police officer.
We thus entertain serious doubts that the shabu contained in a small canister was actually
seized or confiscated at the residence of accused-appellant. In consequence, the manner the
police officers conducted the subsequent and much-delayed search is highly irregular. Upon
bargaining into the residence of accused-appellant, the police officers found him lying down and
they immediately arrested and detained him in the living room while they searched the other
parts of the house. Although they fetched two persons to witness the search, the witnesses were
called in only after the policemen had already entered accused-appellant's residence (pp. 22-23,
tsn, December 11, 1991), and, therefore, the policemen had more than ample time to plant the
shabu. Corollary to the constitutional precept that, in all criminal prosecutions, the accused
shall be presumed innocent until the contrary is proved (Sec. 14(2), Article III, Constitution of the
Republic of the Philippines) is the rule that in order to convict an accused the circumstances of
the case must exclude all and each and every hypothesis consistent with his innocence (People
vs. Tanchoco; 76 Phil. 463 [1946]; People vs. Constante, 12 SCRA 653 [1964]; People vs. Jara,
144 SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that accused-
appellant is innocent.
At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a
canister and allegedly seized at his house, for the charge against him was for selling shabu with
the information alleging that the "accused, without legal authority did . . . sell to a poseur buyer
an aluminum foil containing Methamphetamine Hydrochloride . . ." Sale is totally different from
possession. Article 1458 of the Civil Code defines sale as a contract whereby "one of the
contracting parties obligates himself to transfer the ownership of and to deliver a determine
thing, and the other to pay therefor a price certain in money or its equivalent", while "possession
is the holding of a thing or the enjoyment of a right" as defined by Article 523 of the Civil Code.
Accused-appellant cannot be convicted of a crime which is not charged in the information for to
do so would deny him the due process of law (People vs. Despavellador, 1 SCRA 205 [1961];
People vs. Mori, 55 SCRA 382 [1974]).
Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The
search warrant implemented by the raiding party authorized only the search and seizure of ". . .
the described quantity of Methamphetamine Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was authorized to seize
only shabu and paraphernalia for the use thereof and no other. A search warrant is not a
sweeping authority empowering a raiding party to undertake a finishing expedition to seize and
confiscate any and all kinds of evidence or articles relating to a crime. The Constitution itself
(Section 2, Article III) and the Rules of Court (Section 3, Rule 126) specifically mandate that the
search warrant must particularly describe the things to be seized. Thus, the search warrant was
no authority for the police officers to seize the firearm which was not mentioned, much less
described with particularity, in the search warrant. Neither may it be maintained that the gun
was seized in the course of an arrest, for as earlier observed, accused-appellant's arrest was far
from regular and legal. Said firearm, having been illegally seized, the same is not admissible in
evidence (Stonehill vs. Diokno, 20 SCRA 383 [1967]). The Constitution expressly ordains the
exclusion in evidence of illegally seized articles.
213

Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
(Section 3[2], Article III, Constitution of the Republic of the Philippines).
With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of
evidence to support the charge of illegal possession of firearm, against accused-appellant.
The same may be said of the charge of illegal possession of ammunition.
WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby
ACQUITTED in Criminal Case No. 236-91 and Criminal Case No. 237-91.
The immediate release of accused-appellant is hereby ordered unless there exists a pending valid
cause against him.
The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in
favor of the government.
SO ORDERED.
Feliciano, Bidin, Romero and Vitug, JJ., concur.


Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION



G.R. No. 89373. March 9, 1993.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. YOLANDA GESMUNDO, accused-
appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo M. Alcantara for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; IRRECONCILABLE CONTRADICTIONS IN TESTIMONIES OF
PROSECUTION WITNESSES CAST DOUBT ON GUILT OF ACCUSED. Irreconcilable and
unexplained contradictions in the testimonies of the prosecution witnesses cast doubt on the
guilt of appellant and his culpability to the crime charged. (People of the Philippines vs. Romeo F.
Remorosa)
214

2. ID.; CRIMINAL PROCEDURE; SEARCH WARRANT; SEARCH MADE WITHOUT THE
PRESENCE OF OCCUPANT, HIGHLY IRREGULAR; CASE AT BAR. The claim of the accused-
appellant that the marijuana was planted is strengthened by the manner in which the search
was conducted by the police authorities. The accused-appellant was seated at the sala together
with Sgt. Yte when they heard someone in the kitchen uttered "ito na." Apparently, the search of
the accused-appellant's house was conducted in violation of Section 7, Rule 126 of the Rules of
Court which specifically provides that no search of a house, room or any other premise shall be
made except in the presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing
in the same locality. This requirement is mandatory to ensure regularity in the execution of the
search warrant. Violation of said rule is in fact punishable under Article 130 of the Revised Penal
Code.
3. ID.; ID.; ID.; ID.; VIOLATIVE OF THE SPIRIT AND LETTER OF THE LAW. As we have ruled
in Eduardo Quintero vs. The National Bureau of Investigation, et al. a procedure, wherein
members of a raiding party can roam around the raided premises unaccompanied by any
witness, as the only witnesses available as prescribed by law are made to witness a search
conducted by the other members of the raiding party in another part of the house, is violative of
both the spirit and the letter of the law.
4. ID.; EVIDENCE; ADMISSION; OBTAINED IN VIOLATION OF RIGHTS OF THE ACCUSED,
INADMISSIBLE. It is true that the police were able to get an admission from the accused-
appellant that marijuana was found in her possession but said admission embodied in a
document entitled "PAGPAPATUNAY" previously prepared by the police, is inadmissible in
evidence against the accused-appellant for having been obtained in violation of her rights as a
person under custodial investigation for the commission of an offense. The records show that the
accused-appellant was not informed of her right not to sign the document; neither was she
informed of her right to the assistance of counsel and the fact that the document may be used as
evidence against her.
5. ID.; CRIMINAL PROCEDURE; SEARCH; PROPERTY SEIZED MUST BE DELIVERED TO THE
JUDGE WHO ISSUED THE WARRANT. Not only does the law require the presence of
witnesses when the search is conducted, but it also imposes upon the person making the search
the duty to issue a detailed receipt for the property seized. He is likewise required to deliver the
property seized to the judge who issued the warrant, together with a true and accurate inventory
thereof duly verified under oath. Again, these duties are mandatory and are required to preclude
substitution of the items seized by interested parties.
6. ID.; ID.; ID.; ID.; EXCEPTION. The trial judge cites the case of Yee Sue Koy, et al. vs.
Mariano Almeda, et al. (70 Phil. 141) to justify the retention by the police and the NBI of the
custody of the allegedly confiscated specimens. While in said decision, this Court recognized the
fact that the objects seized were retained by the agents of the Anti-Usury Board, instead of being
turned over to the Justice of the Peace of Sagay, yet the Court also held that it was "for the
reason that the custody of said agents is the custody of the issuing officer or court, the retention
having been approved by the latter." Thus, approval by the court which issued the search
warrant is necessary for the retention of the property seized by the police officers; and only then
will their custody be considered custody of the court. Absent such approval, the police officers
have authority to retain possession of the marijuana and more so, to deliver the property to
another agency, like the NBI.
D E C I S I O N
PADILLA, J p:
215

Appeal from the decision of the Regional Trial Court (RTC) of San Pablo City, Branch 30, * in
Criminal Case No. 4358-SP imposing the penalty of reclusion perpetua on the accused-appellant
for violation of Section 4, Article II of Republic Act No. 6425 (Dangerous Drugs Act of 1972), as
amended; sentencing her to pay a fine of Twenty-Five Thousand (P25,000.00) pesos with
subsidiary imprisonment in case of insolvency and to pay the costs.
In the Information filed by Second Assistant City Fiscal Rogelio B. Javier of San Pablo City, it was
alleged:
"That on or about November 17, 1986, in the City of San Pablo, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the accused above-named, did then and there
wilfully, unlawfully and feloniously distribute and sell marijuana and confiscated in her
possession is a plastic bag containing 100 grams of dried marijuana leaves and three (3) rolls of
magazine newspaper containing marijuana, a dangerous drug, without being authorized by law.
CONTRARY TO LAW.
City of San Pablo, November 21, 1986." 1
The facts as presented by the prosecution are stated in the decision of the trial court as follows:
" . . . in the morning of November 17, 1986, police officer Jose Luciano gave money and
instructed his civilian informer to buy marijuana from the accused at the back of the Cocoland
Hotel at Brgy. Del Remedio, San Pablo City, thereafter with another police officer, Luciano
positioned himself at the ground floor of the hotel and watched. He actually saw the accused
selling marijuana to his civilian informer by the door outside the house of the accused.
Immediately thereafter, that same day Luciano applied for a search warrant.
"At about 2:00 p.m. of that day, a raiding police team armed with Search Warrant No. 10 issued
by Hon. Judge Geronima Pueblo Atanacio of RTC, Branch XXXII of the Court, went to the
residence of the Brgy. Capt. Angel Capuno for them to be accompanied by him in serving the said
warrant at the residence of the accused located at the Cocoland Compound of said barangay.
"Upon reaching the residence of the accused, the police team were allowed entry inside the house
on the strength of the said search warrant shown to the accused. The accused cried upon
reading the contents of the warrant. She begged the team not to search and to leave her house.
But the police team insisted on their search. The accused led the team into her kitchen and she
pointed to a metal basin on top of a table as the hiding place of the dried marijuana flowering
tops contained in a plastic bag marked ISETANN. The police also recovered from a native "uway"
cabinet dried marijuana flowering tops wrapped separately in three (3) pieces of Komiks paper.
After the discovery, the accused was photographed together with the confiscated items.
Thereafter, accused was made to acknowledge in writing that the dried marijuana flowering tops
were taken from her possession and control inside her residence. Brgy. Capt. Capuno also affixed
his countersignature thereto.
"The police forthwith brought the accused to the police station where she was properly booked.
Pfc. Luciano, Pat. Rizalde Perez and Brgy. Captain Capuno executed their sworn statements.
"On November 18, 1986, Pat. Angelito Caraan was dispatched to the NBI requesting for the lab
examination of the items confiscated from the accused. On that same day, the NBI Forensic
Chemist Salud Manguba issued a Certification with a finding that per preliminary examination
which she made, the confiscated items gave positive results for marijuana (Exh. "E"). This was
confirmed later on by her with the issuance of her Report No. DDN-86-2639 (Exh. "H")." 2
Accused-Appellant's version, on the other hand, is as follows:
216

"On November 17, 1986 at around 1:00 p.m. while accused-appellant was in the terrace of their
house located at Barangay del Remedio, San Pablo City, a jeep with policemen on board arrived.
(Tsn, p 3, December 16, 1988). She identified Sgt. Yte and PFC Jose Luciano to be among the
group. Sgt. Yte was invited by accused appellant to enter the house while PFC Luciano was left in
the jeep that was parked near the house. (TSN, p 4, ibid). While seated at the sala, Sgt. Yte
was showing to accused-appellant something which he claimed to be a search warrant when
someone uttered the following words "ito na" coming from the direction where the kitchen of the
house is. She, together with Sgt. Yte proceeded to the kitchen and saw PFC Luciano holding a
plastic bag with four other companions who entered the house through the back door which was
opened at that time. (TSN, p 5, ibid). Luciano handed the bag to Sgt. Yte who, after examining
the contents, confronted the accused-appellant and insisted that the plastic bag came from her.
(TSN, p 6, ibid). She vehemently denied the accusation of Sgt. Yte and told him that she does
not know anything about it. But Sgt. Yte persisted and accused-appellant, who was then seven
(7) months on the family way, was seized by abdominal pains which made her cry. Then she was
made to sign a prepared document with her name already printed on it. Under extreme pressure
and promised that they will just talk with her at the City Hall, accused-appellant was
constrained to sign said document. Afterwards, she was brought to the police station and
detained. (TSN, pp. 7-8, ibid). That before the incident in question, Sgt. Yte asked help from
accused-appellant to testify against one Warner Marquez, son of her former landlord, for drug
pushing. Accused refused, reasoning out that it would be unfair since she is totally unaware of
this thing. But Sgt. Yte remained undaunted and was forcing her for the second time to testify
against Marquez. Spurned, Sgt. Yte left word that she, accused, should be careful as she might
be the next to be charged with drug pushing. (TSN, pp. 11-13, ibid)." 3
On 14 April 1989, the trial court rendered its decision, the dispositive portion of which reads:
"WHEREFORE, premises considered, the Court hereby renders judgment finding the accused
Yolanda Gesmundo guilty beyond reasonable doubt of the crime of violation of Section 4, Article
II, R.A. 6425, as amended without any modifying circumstance to consider, hereby sentences her
to suffer the penalty of reclusion perpetua, to pay the fine of P25,000,00, with subsidiary
imprisonment in case of insolvency and to pay the costs.
"The confiscated specimens are forfeited in favor of the government and to be disposed of in
accordance with law.
"The bail bond for her provisional liberty is hereby cancelled and the accused is hereby ordered
immediately incarcerated." 4
A notice of appeal was filed on 21 April 1989 with the Regional Trial Court which, on the same
day, ordered the elevation of the records of the case to this Court.
Assailing the Regional Trial Court's decision both on questions of law and fact, accused-appellant
assigns the following errors allegedly committed by the trial court:
"I. LOWER COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF AN ILLEGALLY
SEIZED AND OR PLANTED EVIDENCE.
II. LOWER COURT ERRED IN GIVING FAITH AND CREDENCE TO THE TESTIMONIES OF THE
WITNESSES FOR THE PROSECUTION DESPITE VARIANCE AND MATERIAL CONTRADICTIONS.
III. THE LOWER COURT ERRED IN ADMITTING PROSECUTION'S EXHIBITS "F" "F-1" AND "F-
2" IN THE ABSENCE OF COMPETENT EVIDENCE THAT THEY WERE THE ONES ALLEGEDLY
SEIZED AND RECOVERED FROM THE HOUSE OF THE ACCUSED." 5
217

The accused-appellant's conviction by the lower court is anchored on the marijuana seized in her
possession and control by virtue of a Search Warrant issued by Judge Atanacio. Her arrest did
not result from a "buy-bust" operation supposedly conducted by police officers. Although Pfc.
Luciano states that he actually saw the accused-appellant selling marijuana to his civilian
informer outside the house of the accused-appellant, she (accused) was not placed under police
custody at that very moment. Rather, the police officers decided to let her go and effect her arrest
later in the day through a search warrant, so as to apprehend her with a larger amount. 6
There is no question that a search warrant was issued by Judge Geronima P. Atanacio of the
RTC of San Pablo City, Branch 32, as declared by the Court Interpreter of said Branch (a defense
witness). 7 The accused-appellant herself also testified that Sgt. Yte showed her the search
warrant obtained by the police. 8 The controversy centers on the allegation by the accused-
appellant that the marijuana supposedly seized by the raiding police team in her possession, was
planted by the police officers.
The Investigation Report prepared by Pfc. Jose V. Luciano as Investigating Officer and which was
noted by Sgt. Bayani R. Yte as Chief of Intelligence and Investigation Division stated that:
"5. At about 171430 H November 1986, we conducted raid at said residence and premises.
During the search we discovered a hole at the backyard of the house of the suspect with a big
biscuit can inside the hole and on top of the cover a flower pot was placed wherein the marijuana
were kept. Confiscated were more or less 100 grams of dried marijuana leaves and three rolls of
magazine newspaper containing marijuana which is ready for disposal." 9
On direct examination, however, Pfc. Luciano said that the marijuana leaves contained inside the
plastic bag covered by a basin weighed about 800 grams since he himself weighed them on the
weighing scale found in the accused-appellant's house; and he also saw other marijuana
wrapped in a komiks magazine found in an uway cabinet or rattan cabinet. 10 Sgt. Bayani Yte,
on the other hand, affirmed the investigation report when he testified that during the search,
they found dried marijuana leaves, more or less 100 grams on top of the dining table, placed
inside a plastic bag and covered by a metal basin. 11 Angel Capuno, the Barangay Chairman, on
cross-examination, said that the only marijuana confiscated by the police was the one contained
in the white plastic bag. 12
In all their testimonies, there was no mention of any marijuana obtained from a flower pot placed
on top of a biscuit can inside a hole at the backyard of the accused's house as stated in the
investigation report. It would seem that the raiding party "could not put their act together", as to
how much marijuana was recovered and where. The trial court held that the fact of discovery of
the hole at the backyard was merely for the purpose of reporting the hiding place of the
marijuana. 13 But how, it may be asked, could one conclude that it was the hiding place, if no
marijuana was actually seen inside?
Moreover, during the pre-trial, Fiscal Javier requested the marking of a photograph depicting
buried marijuana on the ground for the purpose of showing the place where the dried marijuana
was recovered. 14
Not only are there inconsistencies as to what was recovered and where but also as to whom the
marijuana was supposed to have been surrendered by the accused. Pfc. Luciano pointed out
during his direct examination that it was the accused-appellant who actually gave the marijuana
leaves to Sgt. Yte in the kitchen, and that he (Pfc. Luciano) was asked by Sgt. Puhawan to come
inside the house and they saw the other marijuana leaves wrapped in a magazine located at the
uway cabinet. 15 Unfortunately, Sgt. Yte contradicted Pfc. Luciano's testimony. During his cross
examination, Sgt. Yte asserted that the marijuana leaves were surrendered by the accused-
appellant to Pfc. Luciano upon the presentation of the search warrant and before the search was
218

actually conducted. 16 When asked to explain why their inconsistent statements, Sgt. Yte merely
answered: "That was the testimony of Pat. Luciano that accused personally . . . " 17
We do not agree with the trial court in its conclusion that these discrepancies are trivial. We
must be absolutely convinced that marijuana was actually surrendered by the accused-appellant
and not planted as claimed by her. As held in People of the Philippines vs. Romeo F. Remorosa:
18
"Irreconcilable and unexplained contradictions in the testimonies of the prosecution witnesses
cast doubt on the guilt of appellant and his culpability to the crime charged."
Furthermore, the claim of the accused-appellant that the marijuana was planted is strengthened
by the manner in which the search was conducted by the police authorities. The accused-
appellant was seated at the sala together with Sgt. Yte when they heard someone in the kitchen
uttered "ito na". Apparently, the search of the accused-appellant's house was conducted in
violation of Section 7, Rule 126 of the Rules of Court which specifically provides that no search of
a house, room or any other premise shall be made except in the presence of the lawful occupant
thereof or any member of his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality. This requirement is
mandatory to ensure regularity in the execution of the search warrant. Violation of said rule is in
fact punishable under Article 130 of the Revised Penal Code. 19
As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al. 20 a
procedure, wherein members of a raiding party can roam around the raided premises
unaccompanied by any witness, as the only witnesses available as prescribed by law are made to
witness a search conducted by the other members of the raiding party in another part of the
house, is violative of both the spirit and the letter of the law.
It is true that the police were able to get an admission from the accused-appellant that
marijuana was found in her possession but said admission embodied in a document entitled
"PAGPAPATUNAY" previously prepared by the police, is inadmissible in evidence against the
accused-appellant for having been obtained in violation of her rights as a person under custodial
investigation for the commission of an offense. 21 The records show that the accused-appellant
was not informed of her right not to sign the document; neither was she informed of her right to
the assistance of counsel and the fact that the document may be used as evidence against her.
22
The accused-appellant also contends that the prosecution failed to present evidence to prove that
the marijuana marked as exhibit in court are the same marijuana allegedly confiscated by the
police from her. The contention is well taken.
Not only does the law require the presence of witnesses when the search is conducted. but it also
imposes upon the person making the search the duty to issue a detailed receipt for the property
seized. 23 He is likewise required to deliver the property seized to the judge who issued the
warrant, together with a true and accurate inventory thereof duly verified under oath. 24 Again,
these duties are mandatory and are required to preclude substitution of the items seized by
interested parties.
The police authorities in the case at bar testified that they submitted an inventory to the court
without the marijuana, the latter having been turned over to the National Bureau of Investigation
(NBI). Whether an inventory was actually made by the police was not clearly established in the
trial court. The records show that an inventory was not part of the documents transmitted from
Branch 32 (the warrant issuing branch) to Branch 30 (the trial branch) of the RTC of San Pablo
City. And when asked by the trial judge, the court Interpreter said that Judge Atanacio (who
issued the warrant) confirmed that she does not have among her files the inventory supposedly
219

submitted by the police. 25 If indeed an inventory of the seized items was made, it must be part
of the records of the case. But this was not so.
On the issue of non-delivery of the seized marijuana to the court, the trial court held that it takes
"judicial notice of the usual practice of the San Pablo City police force of retaining possession of
confiscated specimens suspected of being marijuana by immediately forwarding them to the NBI
or to an NBI accredited physician for preliminary examination and/or laboratory examination
before filing a case with the city prosecutor's office." 26 The mere tolerance by the trial court of
such a practice does not make it right. Clearly, such practice violates the mandatory
requirements of the law and defeats the very purpose for which they were enacted. Speculations
as to the probability of tampering with the evidence cannot then be avoided.
The trial judge cites the case of Yee Sue Koy, et al. vs. Mariano Almeda, et al. (70 Phil. 141) to
justify the retention by the police and the NBI of the custody of the allegedly confiscated
specimens. While in said decision, this Court recognized the fact that the objects seized were
retained by the agents of the Anti-Usury Board, instead of being turned over to the Justice of the
Peace of Sagay, yet the Court also held that it was "for the reason that the custody of said agents
is the custody of the issuing officer or court, the retention having been approved by the latter."
27 Thus, approval by the court which issued the search warrant is necessary for the retention of
the property seized by the police officers; and only then will their custody be considered custody
of the court. Absent such approval, the police officers have no authority to retain possession of
the marijuana and more so, to deliver the property to another agency, like the NBI.
Having made no return or inventory to the warrant-issuing court, there is no proof that the
police really found marijuana in the house of the accused. Besides, Salud Manguba, the Forensic
Chemist who examined the marijuana allegedly confiscated by the police from the appellant,
asserted that when the police officer turned over said items to the NBI, there were no identifying
marks on the plastic bag. 28 How sure are we then that the marijuana submitted for
examination was the same marijuana allegedly seized from the accused-appellant?
Lastly, the prosecution in the Information averred that the accused-appellant engaged in the
distribution and sale of marijuana. And yet, as held by this Court,
" . . . In order to sustain conviction for selling prohibited drugs, the element of sale must be
unequivocally established. Also, what the law proscribes is not only the act of selling but also,
albeit not limited to, the act of delivering. The commission of the offense of illegal sale of
marijuana requires merely the consummation of the selling transaction. What is important is
that the poseur-buyer received the marijuana from the accused." 29
It is also required that the marijuana received by the poseur-buyer be presented as evidence in
court. The identity of the marijuana which constitutes the corpus delicti must be established
before the court. 30
Undisputedly, the accused-appellant was not caught in the act of selling marijuana. Sgt. Yte
himself testified during cross-examination that accused-appellant was not actually dispensing
marijuana when the search warrant was served. 31 Neither was the marijuana, object of the
supposed sale, presented in court to support the allegation of the prosecution that accused-
appellant was engaged in the sale of marijuana.
The trial court held that the possession of a considerable quantity of marijuana, coupled with the
fact that the accused-appellant is not a user of prohibited drugs, indicates an intention of the
accused-appellant to sell, distribute and deliver marijuana as held in People of the Philippines
vs. Roberto Toledo y Tejario alias "OBET ." 32
220

The reliance of the trial court on the above-mentioned case is not quite accurate. The basis of the
conviction of the accused in said case was his confession, and thus, the reiteration by the Court
of the trial court's pronouncement amounts to an obiter dictum. Moreover, a person is always
presumed innocent until proven guilty.
From a careful review of the proceedings a quo, this Court is constrained to set aside the lower
court's findings, and we hold that the guilt of the accused-appellant Yolanda Gesmundo has not
been established beyond reasonable doubt.
If the inculpatory facts and circumstances are capable of two (2) or more explanations, one of
which is consistent with the innocence of the accused and the other consistent with his guilt,
then the evidence does not fulfill the test of moral certainty and is not sufficient to support a
conviction. (People v. Parayno, 24 SCRA 3; U.S. v. Maano, 2 Phil. 718; People v. Pacana, 47 Phil.
48). 33
WHEREFORE, the appealed judgment is REVERSED, and on reasonable doubt, the appellant is
hereby ACQUITTED of the crime charged. She is ordered immediately released from detention
unless she is being held for some other legal cause or ground.
SO ORDERED.
Narvasa, C .J ., Regalado, Nocon and Campos, Jr., JJ ., concur.
Footnotes
* Hon. Ausberto B. Jaramillo, Jr., presiding Judge.
1. Original Record, p. 1.
2. Original Record, pp. 193-194.
3. Appellant's Brief, pp. 2-3.
4. Original Record, p. 199 .
5. Appellant's Brief, p. 2.
6. TSN, 12 December 1986, p. 16.
7. TSN, 30 March 1989, p. 5.
8. TSN, 6 December 1988, p. 4.
9. Exhibit A-1, Records of the RTC, List of Exhibits, p. 2.
10. TSN, 12 December 1986, p. 7.
11. TSN, 22 December 1986, pp. 5-6.
12. TSN, 11 February 1987, p. 5.
13. Original Record, p. 197.
221

14. TSN, 11 December 1986, p. 3.
15. TSN, 12 December 1986, p. 7.
16. TSN, 12 March 1987, p. 8.
17. Ibid. p. 10.
18. R. No. 81768, August 7, 1991, 200 SCRA 350.
19. Article 130, Revised Penal Code, reads as follows:
"ART. 130. Searching domicile without witnesses. The penalty of arresto mayor in its medium
and maximum periods shall be imposed upon a public officer or employee who, in cases where a
search is proper, shall search the domicile, papers or other belongings of any person, in the
absence of the latter, any member of his family, or in their default, without the presence of two
witnesses residing in the same locality."
20. G.R. No. L-35149, June 23, 1988, 162 SCRA 467.
21. Article III, Section 12(3), 1987 Constitution.
22. TSN, 6 December 1988, p. 9.
23. Section 10, Rule 126, Rules of Court.
24. Section 11, Rule 126, Rules of Court.
25. TSN, 30 March 1989, p.7.
26. Original Record, p. 198.
27. Yee Sue Koy, et al. vs. Mariano G. Almeda, et al., No. 47021, June 25, 1940, 70 Phil. 141.
28. TSN, 25 March 1987, p. 8.
29. People of the Philippines vs. Rudy Dekingco, G.R. No. 87685, September 13, 1990, 189 SCRA
512.
30. The People of the Philippines vs. Apollo Mariano y Ding-Ding, G.R. No. 86656, October 31,
1990, 191 SCRA 136.
31. TSN, 12 March 1987, p. 7.
32. G.R. No. 67609, November 22, 1985, 140 SCRA 259.
33. The People of the Philippines vs. Rogelio Ale Y Campesenio, G.R. No. 70998, October 14,
1986, 145 SCRA 50.


222

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 81567 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO
DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL,
FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG.
GEN. ALEXANDER AGUIRRE, respondents.
G.R. Nos. 84581-82 October 3, 1991
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.
G.R. Nos. 84583-84 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T.
ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIO, LT. COL.
REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding
Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.
G.R. No. 83162 October 3, 1991
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND
DANNY RIVERA: VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.
G.R. No. 85727 October 3, 1991
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS
ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.
G.R. No. 86332 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO:
ALFREDO NAZARENO,petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro
223

Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and
P/SGT. MALTRO AROJADO,respondents.
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82
Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.
Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.
The Solicitor General for the respondents.
R E S O L U T I O N

PER CURIAM:p
Before the Court are separate motions filed by the petitioners in the above-entitled petitions,
seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for
brevity) which dismissed the petitions, with the following dispositive part:
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby
ordered reduced from P60,000.00 to P10,000.00. No costs.
The Court avails of this opportunity to clarify its ruling a begins with the statement that the
decision did not rule as many misunderstood it to do that mere suspicion that one is
Communist Party or New People's Army member is a valid ground for his arrest without warrant.
Moreover, the decision merely applied long existing laws to the factual situations obtaining in the
several petitions. Among these laws are the outlawing the Communist Party of the Philippines
(CPP) similar organizations and penalizing membership therein be dealt with shortly). It is
elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the
people, it is Congress as the elected representative of the people not the Court that should
repeal, change or modify them.
In their separate motions for reconsideration, petitioners, in sum, maintain:
1. That the assailed decision, in upholding the validity of the questioned arrests
made without warrant, and in relying on the provisions of the Rules of Court,
particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests
violated the constitutional rights of the persons arrested;
2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should
be abandoned;
3. That the decision erred in considering the admissions made by the persons
arrested as to their membership in the Communist Party of the Philippines/New
People's Army, and their ownership of the unlicensed firearms, ammunitions and
subversive documents found in their possession at the time of arrest, inasmuch as
those confessions do not comply with the requirements on admissibility of
extrajudicial admissions;
224

4. That the assailed decision is based on a misappreciation of facts;
5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.
We find no merit in the motions for reconsideration.
It cannot be overlooked that these are petitions for the issuance of the writ of habeas corpus,
filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and
effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of the
special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if
detention is illegal, the detainee may be ordered forthwith released.
In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court
before rendering decision dated 9 July 1990, looked into whether their questioned arrests
without warrant were made in accordance with law. For, if the arrests were made in accordance
with law, would follow that the detention resulting from such arrests also in accordance with
law.
There can be no dispute that, as a general rule, no peace officer or person has the power or
authority to arrest anyo without a warrant of arrest, except in those cases express authorized by
law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the
Rules of Court which states the grounds upon which avalid arrest, without warrant, can be
conducted.
In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said
Rule 113, which read:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to he arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrest has committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without
warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural)
was committing an offense, when arrested because Dural was arrested for being a member of the
New People's Army, an outlawed organization, where membership penalized, 7 and for
subversion which, like rebellion is, under the doctrine ofGarcia vs. Enrile, 8 a continuing offense,
thus:
The crimes of insurrection or rebellion, subversion, conspiracy or proposal to
commit such crimes, and other crimes and offenses committed in the furtherance
(sic) on the occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of continuing offenses
which set them apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA which includes armed struggle for
the overthrow of organized government, Dural did not cease to be, or became less of a subversive,
225

FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St.
Agnes Hospital. Dural was identified as one of several persons who the day before his arrest,
without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol
car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a
"sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would
have shot or would shoot other policemen anywhere as agents or representatives of organized
government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as
a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc.,
which generally end upon their commission, subversion and rebellion are anchored on
an ideological base which compels the repetition of the same acts of lawlessness and violence
until the overriding objective of overthrowing organized government is attained.
Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of
his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by
actual facts that will be shown hereafter.
Viewed from another but related perspective, it may also be said, under the facts of the Umil
case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court,
which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be
arrested has just committed an offense, and second, that the arresting peace officer or private
person has personal knowledge of facts indicating that the person to be arrested is the one who
committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant,
based on "personal knowledge of facts" acquired by the arresting officer or private person.
It has been ruled that "personal knowledge of facts," in arrests without warrant must be based
upon probable cause, which means an actual belief or reasonable grounds of suspicion 9
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is probably guilty of committing the offense,
is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion
therefore must be founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest. 11
These requisites were complied with in the Umil case and in the other cases at bar.
In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St.
Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was
received by their office, about a "sparrow man" (NPA member) who had been admitted to the said
hospital with a gunshot wound; that the information further disclosed that the wounded man in
the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile
patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump
along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the
wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two
(22) years old of Block 10, Lot 4, South City Homes, Bian, Laguna. 12
Said confidential information received by the arresting officers, to the effect that an NPA member
("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed
reasonable and with cause as it was based on actual facts and supported by circumstances
sufficient to engender a belief that an NPA member was truly in the said hospital. The actual
facts supported by circumstances are: first the day before, or on 31 January 1988, two (2)
CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows"
including Dural; second a wounded person listed in the hospital records as "Ronnie Javellon"
was actually then being treated in St. Agnes Hospital for a gunshot wound; third as the
226

records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital
records were fictitious and the wounded man was in reality Rolando Dural.
In fine, the confidential information received by the arresting officers merited their immediate
attention and action and, in fact, it was found to be true. Even the petitioners in their motion for
reconsideration, 13 believe that the confidential information of the arresting officers to the effect
that Dural was then being treated in St. Agnes Hospital was actually received from the attending
doctor and hospital management in compliance with the directives of the law, 14 and, therefore,
came from reliable sources.
As to the condition that "probable cause" must also be coupled with acts done in good faith by
the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are
deemed to have conducted the same in good faith, considering that law enforcers are presumed
to regularly perform their official duties. The records show that the arresting officers did not
appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest,
without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and
(b) of Section 5, Rule 113.
Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant,
an information charging double murder with assault against agents of persons in authority was
filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He
was thus promptly placed under judicial custody (as distinguished fro custody of the arresting
officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion
perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon
Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant,
are also justified. They were searched pursuant to search warrants issued by a court of law and
were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were,
therefore, caught in flagrante delicto which justified their outright arrests without warrant, under
Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs
after their arrests without warrant, informations were filed in court against said petitioners,
thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted
his own petition fo habeas corpus by announcing to this Court during the hearing of these
petitions that he had chosen to remain in detention in the custody of the authorities.
More specifically, the antecedent facts in the "in flagrante" cases are:
1. On 27 June 1988, the military agents received information imparted by a
former NPA about the operations of the CPP and NPA in Metro Manila and that a
certain house occupied by one Renato Constantine, located in the Villaluz
Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used
as their safehouse; that in view of this information, the said house was placed
under military surveillance and on 12 August 1988, pursuant to a search warrant
duly issued by court, a search of the house was conducted; that when Renato
Constantine was then confronted he could not produce any permit to possess the
firearms, ammunitions, radio and other communications equipment, and he
admitted that he was a ranking member of the CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato
Constantino in the evening of 12 August 1988, and admitted that he was an NPA
courier and he had with him letters to Renato Constantine and other members of
the rebel group.
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3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest
of Buenaobra who had in his possession papers leading to the whereabouts of
Roque; 17 that, at the time of her arrest, the military agents found subversive
documents and live ammunitions, and she admitted then that the documents
belonged to her.18
4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without
warrant on 13 August 1988, when they arrived at the said house of Renato
Constantine in the evening of said date; that when the agents frisked them,
subversive documents, and loaded guns were found in the latter's possession but
failing to show a permit to possess them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant when she
arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who
was believed to be the head of the CPP/NPA, and whose house was subject of a
search warrant duly issued by the court. At the time of her arrest without warrant
the agents of the PC-Intelligence and Investigation found ammunitions and
subversive documents in the car of Ocaya. 20
It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the
reason which compelled the military agents to make the arrests without warrant was the
information given to the military authorities that two (2) safehouses (one occupied by Renato
Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their
operations, with information as to their exact location and the names of Renato Constantine and
Benito Tiamzon as residents or occupants thereof.
And at the time of the actual arrests, the following circumstances surrounded said arrests (of
Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that
the information they had received was true and the persons to be arrested were probably guilty
of the commission of certain crimes: first: search warrant was duly issued to effect the search of
the Constantine safehouse; second: found in the safehouse was a person named Renato
Constantine, who admitted that he was a ranking member of the CPP, and found in his
possession were unlicensed firearms and communications equipment; third: at the time of their
arrests, in their possession were unlicensed firearms, ammunitions and/or subversive
documents, and they admitted ownership thereof as well as their membership in the CPP/NPA.
And then, shortly after their arrests, they were positively identified by their former comrades in
the organization as CPP/NPA members. In view of these circumstances, the corresponding
informations were filed in court against said arrested persons. The records also show that, as in
the case of Dural, the arrests without warrant made by the military agents in the Constantino
safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or
irregularly performed.
With all these facts and circumstances existing before, during and after the arrest of the afore-
named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can
say that it would have been better for the military agents not to have acted at all and made any
arrest. That would have been an unpardonable neglect of official duty and a cause for
disciplinary action against the peace officers involved.
For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the
hands of executive and judicial authorities upon whom devolves the duty to investigate the acts
constituting the alleged violation of law and to prosecute and secure the punishment
therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to
arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113
are met. This rule is founded on an overwhelming public interest in peace and order in our
communities.
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In ascertaining whether the arrest without warrant is conducted in accordance with the
conditions set forth in Section 5, Rule 113, this Court determines not whether the persons
arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence
of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the
performance of their duties and in the interest of public order, to conduct an arrest without
warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under
the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the
arrested persons are later found to be innocent and acquitted, the arresting officers are not
liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be
held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil
Code 26 and/or for other administrative sanctions.
In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of
the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November
1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke
at a gathering of drivers and sympathizers, where he said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis
supplied)
and that the police authorities were present during the press conference held at the National
Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney
and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for
subversion or any "continuing offense," but for uttering the above-quoted language which, in the
perception of the arresting officers, was inciting to sedition.
Many persons may differ as to the validity of such perception and regard the language as falling
within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to
insist, during the pre-trial or trial on the merits, that he was just exercising his right to free
speech regardless of the charged atmosphere in which it was uttered. But, the authority of the
peace officers to make the arrest, without warrant, at the time the words were uttered, or soon
thereafter, is still another thing. In the balancing of authority and freedom, which obviously
becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but
only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail
for Espiritu's release to be reduced from P60,000.00 to P10,000.00.
Let it also be noted that supervening events have made the Espiritu case moot and academic. For
Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did
not appear. Because of this development, the defense asked the court a quo at the resumption of
the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been
provisionally dismissed and his bail bond cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988,
Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at
about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the
said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during
the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents
arrested Nazareno, without warrant, for investigation. 29
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without
warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section
5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know
that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be
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made promptly, even without warrant, (after the police were alerted) and despite the lapse of
fourteen (14) days to prevent possible flight.
As shown in the decision under consideration, this Court, in upholding the arrest without
warrant of Nazareno noted several facts and events surrounding his arrest and detention, as
follows:
. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an
information charging Narciso Nazareno, Ramil Regala and two (2) others, with the
killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro
Manila. The case is dock eted therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion
was denied by the trial court in an order dated 10 January 1989, even as the
motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted
by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on
behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ
of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of
Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January
1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of
the Regional Trial Court of Bian, Laguna issued a resolution denying the petition
for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of
the respondents by reason of an information filed against him with the Regional
Trial Court of Makati, Metro Manila which liad taken cognizance of said case and
had, in fact, denied the motion for bail filed by said Narciso Nazareno (presuma