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NOTES & CASES IN POLITICAL LAW

February 2012 Edition


Volume II
(BILL OF RIGHTS)

by:

ATTY. LARRY D. GACAYAN


Professor
(Constitutional Law Review, Constitutional Law I & II & Wills and
Succession)
COLLEGE OF LAW
University of the Cordilleras

Pre-Bar Reviewer

CPRS PRE-BAR REVIEW CENTER


(Cagayan de Oro City, Zamboanga City, Iloilo City, Tacloban City, Ozamis
City, Cebu City, Davao City and Baguio City)

EXCELLENT PRE-BAR REVIEW CENTER


(Naga City, Cebu City and Baguio City)

POWERHAUS PRE-BAR REVIEW CENTER


(Baguio, Manila, Santiago City, Dipolog City, San Fernando City (LU) and
Tagbilaran City)

PANGASINAN REVIEW CENTER


Dagupan City

HOLY TRINITY REVIEW CENTER


General Santos City

Chapter 1
FUNDAMENTAL POWERS OF THE STATE

(Police Power)

1. Define:

1. police power---is the power vested in the legislature by the Constitution to make, ordain,
establish all manner of wholesome and reasonable laws for the good and welfare of the
State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967)

The basic purposes of police power are:

1. to promote the general welfare, comfort and convenience of the people;


(ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343;
US VS. TORIBIO, 15 Phil. 85
2. to promote and preserve public health; (VILLANUEVA VS. CASTANEDA,
September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO
VS. DIRECTOR OF HEALTH, 50 Phil. 595apprehend and confine lepers in a
leprosarium)

Police Power as a limitation to the right to practice a profession

PROFESSIONAL REGULATIONS COMMISSION VS. ARLENE DE


GUZMAN, ET AL., June 21, 2004

Facts:

After the Professional Regulations Commission (PRC) released the names of


successful examinees in the Medical Licensure Examination, the Board of
Medicines observed that the grades of the 79 Fatima College of Medicine

successful examinees were unusually and exceptionally high in the two (2) most
difficult subjects of the exam, i.e., Biochemistry and Obstetrics and Gynecology.

The Board then issued Resolution No. 19 withholding the registration as


physicians of all the examinees from Fatima College of Medicine. Compared with
other examines from other schools, the results of those from Fatima were not only
incredibly high but unusually clustered close to each other. The NBI Investigation
found that the Fatima examinees gained early access to the test questions.

Held:

It must be stressed that the power to regulate the practice of a profession or


pursuit of an occupation cannot be exercised by the State in an arbitrary, despotic
or oppressive manner. However, the regulating body has the right to grant or
forbid such privilege in accordance with certain conditions.

But like all rights and freedoms guaranteed by the Constitution, their exercise
may be regulated pursuant to the police power of the State to safeguard health,
morals, peace, education, order, safety, and general welfare of the people. As
such, mandamus will not lie to compel the Board of Medicine to issue licenses for
the respondents to practice medicine.

RA 2382 which prescribes the requirements for admission to the practice of


medicine, the qualifications of the candidates for the board examination, the scope
and conduct of the examinations, the grounds for the denying of the issuance of a
physicians license, or revoking a license that has been issued. It is therefore clear
that the examinee must prove that he has fully complied with all the conditions
and requirements imposed by law and the licensing authority to be granted the
privilege to practice medicine. In short, he shall have all the qualifications and
none of the disqualifications. The petition is therefore granted.

3. to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195;
TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )

4. to maintain and safeguard peace and order; (GUAZON VS. DE VILLA)

5. to protect public morals; (CITY OF MANILA VS. JUDGE LAGUIO, JR., 455
SCRA 308; WHITE LIGHT CORPORATION VS. CITY OF MANILA, January 20,
2009; DE LA CRUZ VS. PARAS, 123 SCRA 569; ERMITA MALATE HOTEL VS.
CITY MAYOR, July 31, 1967; VILLAVICENCIO VS. MAYOR LUKBAN OF
MANILA, 39 Phil. 778; JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO
VS. VILLEGAS, February 13, 1983)

An Ordinance of the City of Manila prohibiting short-time in Motels and Hotels.

WHITE LIGHT CORPORATION, TITANIUM


CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION vs. CITY OF MANILA,
represented by MAYOR ALFREDO S. LIM, G.R. No. 122846,
January 20, 2009
Tinga, J.:

With another city ordinance of Manila also principally involving the tourist
district as subject, the Court is confronted anew with the incessant clash between
government power and individual liberty in tandem with the archetypal
tension between law and morality.

In City of Manila v. Laguio, Jr, the Court affirmed the nullification of a city
ordinance barring the operation of motels and inns, among other establishments,
within the Ermita-Malate area. The petition at bar assails a similarly-motivated
city ordinance that prohibits those same establishments from offering short-time
admission, as well as pro-rated or wash up rates for such abbreviated stays. Our
earlier decision tested the city ordinance against our sacred constitutional rights to
liberty, due process and equal protection of law. The same parameters apply to the
present petition.

This Petition challenges the validity of Manila City Ordinance No. 7774 entitled,
An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates,
and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension
Houses, and Similar Establishments in the City of Manila (the Ordinance).
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law
the Ordinance. The Ordinance is reproduced in full, hereunder:

SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up
rate or other similarly concocted terms, are hereby prohibited in hotels, motels,
inns, lodging houses, pension houses and similar establishments in the City of
Manila.

SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and


charging of room rate for less than twelve (12) hours at any given time or the
renting out of rooms more than twice a day or any other term that may be
concocted by owners or managers of said establishments but would mean the
same or would bear the same meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any
provision of this ordinance shall upon conviction thereof be punished by a fine of
Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding
one (1) year or both such fine and imprisonment at the discretion of the court;
Provided, That in case of [a] juridical person, the president, the manager, or the
persons in charge of the operation thereof shall be liable: Provided, further, That
in case of subsequent conviction for the same offense, the business license of the
guilty party shall automatically be cancelled.

On December 15, 1992, the Malate Tourist and Development Corporation


(MTDC) filed a complaint for declaratory relief with prayer for a writ of
preliminary injunction and/or temporary restraining order ( TRO) with the
Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein
respondent City of Manila (the City) represented by Mayor Lim. MTDC prayed
that the Ordinance, insofar as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional. MTDC claimed that as
owner and operator of the Victoria Court in Malate, Manila it was authorized by

Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as
well as to charge customers wash up rates for stays of only three hours.
They contend that the assailed Ordinance is an invalid exercise of police
power.

II.

To students of jurisprudence, the facts of this case will recall to mind not only the
recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and
Motel Operations Association, Inc., v. Hon. City Mayor of Manila. Ermita-Malate
concerned the City ordinance requiring patrons to fill up a prescribed form stating
personal information such as name, gender, nationality, age, address and
occupation before they could be admitted to a motel, hotel or lodging house. This
earlier ordinance was precisely enacted to minimize certain practices deemed
harmful to public morals. A purpose similar to the annulled ordinance in City of
Manila which sought a blanket ban on motels, inns and similar establishments in
the Ermita-Malate area. However, the constitutionality of the ordinance in
Ermita-Malate was sustained by the Court.

The common thread that runs through those decisions and the case at bar goes
beyond the singularity of the localities covered under the respective ordinances.
All three ordinances were enacted with a view of regulating public morals
including particular illicit activity in transient lodging establishments. This could
be described as the middle case, wherein there is no wholesale ban on motels and
hotels but the services offered by these establishments have been severely
restricted. At its core, this is another case about the extent to which the State can
intrude into and regulate the lives of its citizens.

The test of a valid ordinance is well established. A long line of decisions


including City of Manila has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local government unit to enact
and pass according to the procedure prescribed by law, it must also conform
to the following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must
not be partial or discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public policy; and (6) must not
be unreasonable .

A.

Police power, while incapable of an exact definition, has been purposely


veiled in general terms to underscore its comprehensiveness to meet all exigencies
and provide enough room for an efficient and flexible response as the conditions
warrant. Police power is based upon the concept of necessity of the State and its
corresponding right to protect itself and its people.Police power has been used as
justification for numerous and varied actions by the State. These range from the
regulation of dance halls, movie theaters, gas stations, and cockpits. The awesome
scope of police power is best demonstrated by the fact that in its hundred or so
years of presence in our nations legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use
of the covered establishments for illicit sex, prostitution, drug use and alike. These
goals, by themselves, are unimpeachable and certainly fall within the ambit of the
police power of the State.

B.

The primary constitutional question that confronts us is one of due


process, as guaranteed under Section 1, Article III of the Constitution. Due
process evades a precise definition. The purpose of the guaranty is to prevent
arbitrary governmental encroachment against the life, liberty and property of
individuals. The due process guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and partnerships are protected by the
guaranty insofar as their property is concerned.

The due process guaranty has traditionally been interpreted as imposing two
related but distinct restrictions on government, "procedural due process" and
"substantive due process." Procedural due process refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property.
Procedural due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private sphere. Examples
range from the form of notice given to the level of formality of a hearing.

Substantive due process completes the protection envisioned by the due process
clause. It inquires whether the government has sufficient justification for
depriving a person of life, liberty, or property.

The question of substantive due process, more so than most other fields of
law, has reflected dynamism in progressive legal thought tied with the expanded
acceptance of fundamental freedoms. Police power, traditionally awesome as it
may be, is now confronted with a more rigorous level of analysis before it can be
upheld. The vitality though of constitutional due process has not been predicated
on the frequency with which it has been utilized to achieve a liberal result for,
after all, the libertarian ends should sometimes yield to the prerogatives of the
State. Instead, the due process clause has acquired potency because of the
sophisticated methodology that has emerged to determine the proper metes and
bounds for its application.

C.

The general test of the validity of an ordinance on substantive due process


grounds is best tested when assessed with the evolved footnote 4 test laid down by
the U.S. Supreme Court in U.S. v. Carolene Products. Footnote 4 of the Carolene
Products case acknowledged that the judiciary would defer to the legislature
unless there is a discrimination against a discrete and insular minority or
infringement of a fundamental right. Consequently, two standards of judicial
review were established: strict scrutiny for laws dealing with freedom of the
mind or restricting the political process, and the rational basis standard of
review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was


later adopted by the U.S. Supreme Court for evaluating classifications based on
gender and legitimacy, Immediate scrutiny was adopted by the U.S. Supreme
Court in Craig, after the Court declined to do so in Reed v. Reed. While the test
may have first been articulated in equal protection analysis, it has in the United
States since been applied in all substantive due process cases as well.

We ourselves have often applied the rational basis test mainly in analysis
of equal protection challenges. Using the rational basis examination, laws or

ordinances are upheld if they rationally further a legitimate governmental interest.


Under intermediate review, governmental interest is extensively examined and the
availability of less restrictive measures is considered. Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers


to the standard for determining the quality and the amount of governmental
interest brought to justify the regulation of fundamental freedoms. Strict scrutiny
is used today to test the validity of laws dealing with the regulation of speech,
gender, or race as well as other fundamental rights as expansion from its earlier
applications to equal protection. The United States Supreme Court has expanded
the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial
access and interstate travel.

If we were to take the myopic view that an Ordinance should be analyzed


strictly as to its effect only on the petitioners at bar, then it would seem that the
only restraint imposed by the law which we are capacitated to act upon is the
injury to property sustained by the petitioners, an injury that would warrant the
application of the most deferential standard the rational basis test. Yet as earlier
stated, we recognize the capacity of the petitioners to invoke as well the
constitutional rights of their patrons those persons who would be deprived of
availing short time access or wash-up rates to the lodging establishments in
question.

D.

It cannot be denied that the primary animus behind the ordinance is the
curtailment of sexual behavior. The City asserts before this Court that the subject
establishments have gained notoriety as venue of prostitution, adultery and
fornications in Manila since they provide the necessary atmosphere for
clandestine entry, presence and exit and thus became the ideal haven for
prostitutes and thrill-seekers. Whether or not this depiction of a mise-en-scene
of vice is accurate, it cannot be denied that legitimate sexual behavior among
willing married or consenting single adults which is constitutionally protected will
be curtailed as well, as it was in the City of Manila case. Our holding therein
retains significance for our purposes:

We cannot discount other legitimate activities which the Ordinance would


proscribe or impair. There are very legitimate uses for a wash rate or renting the
room out for more than twice a day. Entire families are known to choose pass the
time in a motel or hotel whilst the power is momentarily out in their homes. In
transit passengers who wish to wash up and rest between trips have a legitimate
purpose for abbreviated stays in motels or hotels. Indeed any person or groups of
persons in need of comfortable private spaces for a span of a few hours with
purposes other than having sex or using illegal drugs can legitimately look to
staying in a motel or hotel as a convenient alternative.

E.

Further, it is apparent that the Ordinance can easily be circumvented


by merely paying the whole day rate without any hindrance to those engaged
in illicit activities. Moreover, drug dealers and prostitutes can in fact collect
wash rates from their clientele by charging their customers a portion of the
rent for motel rooms and even apartments.

The Ordinance needlessly restrains the operation of the businesses of


the petitioners as well as restricting the rights of their patrons without
sufficient justification. The Ordinance rashly equates wash rates and renting
out a room more than twice a day with immorality without accommodating
innocuous intentions.

To be candid about it, the oft-quoted American maxim that you cannot
legislate morality is ultimately illegitimate as a matter of law, since as explained
by Calabresi, that phrase is more accurately interpreted as meaning that efforts to
legislate morality will fail if they are widely at variance with public attitudes
about right and wrong. Our penal laws, for one, are founded on age-old moral
traditions, and as long as there are widely accepted distinctions between right and
wrong, they will remain so oriented.

WHEREFORE, the Petition is GRANTED. Ordinance No. 7774 is


hereby declared UNCONSTITUTIONAL.

*********************************

An Ordinance requiring the motels in Ermita-Malate area to transfer to another place in the City
of Manila as well as prohibiting THE ESTABLISHMENT OR OPERATION OF BUSINESSES
PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND
FACILITIES IN THE ERMITA-MALATE AREA was held unconstitutional

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of


Manila, et al vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge,
RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION,
GR No. 118127, April 12, 2005

TINGA, J.:
FACTS:
The City Council of Manila enacted on 9 March 1993 and approved by
petitioner City Mayor on 30 March 1993 an Ordinance is entitled

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR


OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF
AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE
ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION
THEREOF, AND FOR OTHER PURPOSES.
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary
notwithstanding, no person, partnership, corporation or entity shall, in the
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft
Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the
West, pursuant to P.D. 499 be allowed or authorized to contract and engage in,
any business providing certain forms of amusement, entertainment, services
and facilities where women are used as tools in entertainment and which tend
to disturb the community, annoy the inhabitants, and adversely affect the
social and moral welfare of the community, such as but not limited to:
1. Sauna Parlors

2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf
of the said officials are prohibited from issuing permits, temporary or
otherwise, or from granting licenses and accepting payments for the
operation of business enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted
to, the businesses enumerated in Section 1 hereof are hereby given three (3)
months from the date of approval of this ordinance within which to wind up
business operations or to transfer to any place outside of the Ermita-Malate
area or convert said businesses to other kinds of business allowable within
the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops

8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for wholesome
family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows,
stage and theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as provided for in the
zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock
or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral
establishments.
The Ordinance was questioned as an invalid exercise of police power and violative of the due
process and equal protection clause of the 1987 Constitution.
HELD:
The tests of a valid ordinance are well established. A long line of decisions
has held that for an ordinance to be valid, it must not only be within the corporate
powers of the local government unit to enact and must be passed according to the
procedure prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any statute; (2)
must not be unfair or oppressive; (3) must not be partial or discriminatory;
(4) must not prohibit but may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be unreasonable.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the
limitation that its exercise must be reasonable and for the public good. In the case
at bar, the enactment of the Ordinance was an invalid exercise of delegated power
as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment
by all the people of the blessings of democracy.
SEC. 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.
SEC. 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of laws.

Sec. 9. Private property shall not be taken for public use without just
compensation.
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o
person shall be deprived of life, liberty or property without due process of
law. . . . There is no controlling and precise definition of due process. It
furnishes though a standard to which governmental action should conform in
order that deprivation of life, liberty or property, in each appropriate case, be
valid. This standard is aptly described as a responsiveness to the supremacy of
reason, obedience to the dictates of justice, and as such it is a limitation upon the
exercise of the police power. The purpose of the guaranty is to prevent
governmental encroachment against the life, liberty and property of individuals;
to secure the individual from the arbitrary exercise of the powers of the
government, unrestrained by the established principles of private rights and
distributive justice; to protect property from confiscation by legislative
enactments, from seizure, forfeiture, and destruction without a trial and conviction
by the ordinary mode of judicial procedure; and to secure to all persons equal and
impartial justice and the benefit of the general law. The guaranty serves as a
protection against arbitrary regulation, and private corporations and partnerships
are persons within the scope of the guaranty insofar as their property is
concerned. This clause has been interpreted as imposing two separate limits on
government, usually called procedural due process and substantive due
process.
Procedural due process, as the phrase implies, refers to the procedures that
the government must follow before it deprives a person of life, liberty, or
property. Classic procedural due process issues are concerned with what kind of
notice and what form of hearing the government must provide when it takes a
particular action.
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a persons life, liberty, or
property. In other words, substantive due process looks to whether there is a
sufficient justification for the governments action. Case law in the United States
(U.S.) tells us that whether there is such a justification depends very much on the
level of scrutiny used. For example, if a law is in an area where only rational basis
review is applied, substantive due process is met so long as the law is rationally
related to a legitimate government purpose. But if it is an area where strict
scrutiny is used, such as for protecting fundamental rights, then the government
will meet substantive due process only if it can prove that the law is necessary to
achieve a compelling government purpose. The police power granted to local
government units must always be exercised with utmost observance of the rights
of the people to due process and equal protection of the law. Such power cannot

be exercised whimsically, arbitrarily or despotically as its exercise is subject to a


qualification, limitation or restriction demanded by the respect and regard due to
the prescription of the fundamental law, particularly those forming part of the Bill
of Rights. Individual rights, it bears emphasis, may be adversely affected only to
the extent that may fairly be required by the legitimate demands of public interest
or public welfare. Due process requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty and property.
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for
the enactment of the Ordinance, and to free it from the imputation of
constitutional infirmity, not only must it appear that the interests of the
public generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals. It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. A
reasonable relation must exist between the purposes of the police measure
and the means employed for its accomplishment, for even under the guise of
protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded. Lacking a
concurrence of these two requisites, the police measure shall be struck down
as an arbitrary intrusion into private rights and a violation of the due
process clause.
The Ordinance was enacted to address and arrest the social ills purportedly
spawned by the establishments in the Ermita-Malate area which are allegedly
operated under the deceptive veneer of legitimate, licensed and tax-paying
nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels.
Petitioners insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila had already taken
judicial notice of the alarming increase in the rate of prostitution, adultery and
fornication in Manila traceable in great part to existence of motels, which provide
a necessary atmosphere for clandestine entry, presence and exit and thus become
the ideal haven for prostitutes and thrill-seekers. The object of the Ordinance
was, accordingly, the promotion and protection of the social and moral values of
the community. Granting for the sake of argument that the objectives of the
Ordinance are within the scope of the City Councils police powers, the means
employed for the accomplishment thereof were unreasonable and unduly
oppressive.
The Ordinance seeks to legislate morality but fails to address the core issues
of morality. Try as the Ordinance may to shape morality, it should not foster the
illusion that it can make a moral man out of it because immorality is not a thing, a

building or establishment; it is in the hearts of men. The City Council instead


should regulate human conduct that occurs inside the establishments, but not to
the detriment of liberty and privacy which are covenants, premiums and blessings
of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear
invasion of personal or property rights, personal in the case of those individuals
desirous of owning, operating and patronizing those motels and property in terms
of the investments made and the salaries to be paid to those therein employed. If
the City of Manila so desires to put an end to prostitution, fornication and other
social ills, it can instead impose reasonable regulations such as daily inspections
of the establishments for any violation of the conditions of their licenses or
permits; it may exercise its authority to suspend or revoke their licenses for these
violations; and it may even impose increased license fees. In other words, there
are other means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated establishments are given three
(3) months from the date of approval of the Ordinance within which to wind up
business operations or to transfer to any place outside the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area.
Further, it states in Section 4 that in cases of subsequent violations of the
provisions of the Ordinance, the premises of the erring establishment shall be
closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes on the
constitutional guarantees of a persons fundamental right to liberty and property.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially
divests the respondent of the beneficial use of its property.[77] The Ordinance in
Section 1 thereof forbids the running of the enumerated businesses in the ErmitaMalate area and in Section 3 instructs its owners/operators to wind up business
operations or to transfer outside the area or convert said businesses into allowed
businesses. An ordinance which permanently restricts the use of property that it

can not be used for any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just compensation.[78] It is intrusive
and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private
property shall not be taken for public use without just compensation. The
provision is the most important protection of property rights in the Constitution.
This is a restriction on the general power of the government to take property. The
constitutional provision is about ensuring that the government does not confiscate
the property of some to give it to others. In part too, it is about loss spreading. If
the government takes away a persons property to benefit society, then society
should pay. The principal purpose of the guarantee is to bar the Government
from forcing some people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.[79]
The second option instructs the owners to abandon their property and build
another one outside the Ermita-Malate area. In every sense, it qualifies as a
taking without just compensation with an additional burden imposed on the owner
to build another establishment solely from his coffers. The proffered solution does
not put an end to the problem, it merely relocates it. Not only is this impractical,
it is unreasonable, onerous and oppressive. The conversion into allowed
enterprises is just as ridiculous. How may the respondent convert a motel into a
restaurant or a coffee shop, art gallery or music lounge without essentially
destroying its property? This is a taking of private property without due process of
law, nay, even without compensation.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These lawful
establishments may be regulated, but not prevented from carrying on their
business. This is a sweeping exercise of police power that is a result of a lack of
imagination on the part of the City Council and which amounts to an interference
into personal and private rights which the Court will not countenance. In this
regard, we take a resolute stand to uphold the constitutional guarantee of the right
to liberty and property.
The foregoing premises show that the Ordinance is an unwarranted and
unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the guise of
exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed. Similar
subjects, in other words, should not be treated differently, so as to give undue
favor to some and unjustly discriminate against others.[98] The guarantee means
that no person or class of persons shall be denied the same protection of laws

which is enjoyed by other persons or other classes in like circumstances.[99] The


equal protection of the laws is a pledge of the protection of equal laws.[100] It
limits governmental discrimination. The equal protection clause extends to
artificial persons but only insofar as their property is concerned.[101]
Legislative bodies are allowed to classify the subjects of legislation. If the
classification is reasonable, the law may operate only on some and not all of
the people without violating the equal protection clause.[103] The classification
must, as an indispensable requisite, not be arbitrary. To be valid, it must
conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]

In the Courts view, there are no substantial distinctions between motels, inns, pension
houses, hotels, lodging houses or other similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other services for the public. No reason
exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other
similar establishments. The classification in the instant case is invalid as similar subjects are not
similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not
rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of
motels in the Ermita-Malate area but not outside of this area. A noxious establishment does not
become any less noxious if located outside the area.

6. to promote the economic security of the people. (ichong vs. hernandez, 101 Phil. 11155)

Not a valid exercise of police power:

1. CITY GOVERNMENT OF QC VS. ERICTA, 122 SCRA 759; (Requiring private


cemeteries to set aside a portion of their land area to be given as burial place for
paupers, free of charge, is an invalid exercise of police power. It constitutes
taking of a private property for public use without just compensation. The local
government units could not validly pass to private cemeteries their obligation under
the Local Government Code to provide cemeteries to their constituents)

2. YNOT VS. IAC, 148 SCRA 659; the Director of Animal Industry or the Chairman if the
National Meat Commission may dispose of the carabaos or carabeef confiscated for
violating the executive order prohibiting the inter-provincial transport of said animals
without prior permit issued by the government to charitable agencies as he may deem
fit. This is oppressive and unreasonable since the owner of the animals is denied due
process of law and the Director of Animal Industry or Chairman of the National Meat
Commission is given so much discretion as the law is not complete in itself nor is there a
standard to guide the official.

3. DE LA CRUZ VS. PARAS, 123 SCRA 569

(An Ordinance of Bocaue, Bulacan prohibiting the operation of nightclubs is


unconstitutional. It is not a valid exercise of police power. This is so because
nightclubs are not illegal per se. They can be regulated but not prohibited)

2.

power of eminent domain


1.

power of taxation

2. Differences and similarities

Didipio earth savers multi purpose association vs. denr sec. Elisea gozu, et
al., 485 scra 586

Chico-Nazario, J.

1. The power of eminent domain is the inherent right of the State to condemn
or to take private property for public use upon payment of just
compensation while police power is the power of the state to promote

public welfare by restraining and regulating the use of liberty and property
without compensation;
2. In the exercise of police power, enjoyment of a property is restricted
because the continued use thereof would be injurious to public welfare. In
such case, there is no compensable taking provided none of the property
interests is appropriated for the use or for the benefit of the public.
Otherwise, there should be compensable taking if it would result to public
use.
3. Properties condemned under police power are usually noxious or intended
for noxious purpose; hence , no compensation shall be paid. Likewise, in
the exercise of police power, property rights of private individuals are
subjected to restraints and burdens in order to secure the general comfort,
health and prosperity of the state.

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. Taking may
include trespass without actual eviction of the owner, material impairment of the
value of the property or prevention of the ordinary uses for which the property
was intended such as the establishment of an easement.

As such, an imposition of burden over a private property through easement


(by the government) is considered taking; hence, payment of just compensation is
required. The determination of just compensation, however, is a judicial function
(EPZA vs. Dulay, 149 SCRA 305) and initial determinations on just compensation
by the executive department and Congress cannot prevail over the courts
findings.

3. Limitations in the exercise of said powers

4. Tests for a valid exercise of police power


1. the interests of the public, not mere particular class, require the exercise of police power;
(LAWFUL SUBJECT)

2. the means employed is reasonably necessary for the accomplishment of the purpose and
not unduly oppressive to individuals. (LAWFUL MEANS). In short, the end does not
justify the means.

Illustration: Lawful subject but the means employed is illegal

RESTITUTO YNOT VS. THE ITERMEDIATE APPELLATE COURT, G.R.


No. 74457,March 20, 1987
Cruz, J.

Facts:
1. On January, 13, 1984, Ynot transported six carabaos by using a pumpboat from
Masbate to Iloilo. The six carabaos, were, however, confiscated by the Police
Station Commander of Baratoc Nuevo, Iloilo for alleged violation of Executive
Order No. 626-A which prohibits the inter-provincial transporting of carabaos and
carabeefs which does not comply with the provisions of Executive No.626;

2. That Section 1 of the said law provides that "henceforth, no carabaos regardless
of age, sex physical condition or purpose and no carabeef shall be transported
from one province to another. The carabao or carabeef transported in violation of
the said law shall be subjected to confiscation and forfeiture by the government to
be distributed to charitable institution and similar institutions as the Chairman of
the National meat inspection Commission may see fit in the case of the carabeef,
and to deserving farmers through the dispersal of the Director of Animal Industry,
in the case of carabaos;

3. Ynot filed a suit for recovery and the carabao were returned to him upon the
issuance of a writ of replevin upon his filing of a supersede as bond in the amount
of P12,000.00;

4. After trial of the case, the Judge upheld the validity of the act of the Police
Station Commander in confiscating the carabaos. Ynot was ordered to returned

the carabaos but since he could not do so, the court ordered the confiscation of the
bond. The court refused to rule on the constitutionality of the said Executive
Order on the ground of lack of authority to do so and also because of its presumed
validity;

5. The petitioner appealed to the IAC but the said court upheld the decision of the
Trial Court. Hence this petition for review on certiorari before the Supreme Court
where YNOT claimed that the penalty of confiscation is INVALID the same was
imposed without according the owner the right to be heard before a competent
and impartial tribunal as guaranteed by due process.

Issues:
1. May a lower court (like the MTC, RTC, of the Court of Appeals) declare a law
unconstitutional?

2. Is Executive Order No. 626-A constitutional?

Sub-issues under this are:

a. Was it a valid police power measure?


b. Was there an undue delegation of legislative power?

Held:

1. While the lower courts should observe a becoming modesty in examining


constitutional question, THEY ARE NOT PREVENTED FROM RESOLVING
THE SAME WHENEVER WARRANTED, subject only to review by the
supreme court. This is so because under Section 5,[2(a)], Art. VIII, of the 1987
Constitution provides that the Supreme Court has the power to "review, revise,
reverse, modify or affirm on appeal" or certiorari as the rules of court may

provide, final judgments and orders of the lower courts in all cases involving the
constitutionality of certain measures. This simply means that lower courts may
declare whether or not a law is constitutional.

2. In order that a measure or law may be justified under the police power of
the state, it must meet two tests:

a. the subject must be lawful; and


b. the means employed is lawful.

Since the prohibition of the slaughtering of carabaos except where they are at
least 7 years old when male and at least 11 years old when female is in
furtherance of the public interest since said carabaos are very useful to the work at
the farm, it is conceded
that the Executive Order meets the first test---- it has lawful subject.

But does the law meets the second requisite or test which is lawful method?

Executive Order No. 626-A imposes an absolute ban not on the slaughtering of
carabaos BUT ON THIER MOVEMENT, providing that "no carabao regardless
of age, sex, physical condition or purpose and no carabeef shall be transported
from one province to another." The reasonable connection between the means
employed and the purpose sought to be achieved by the question measure is
missing. We do not see how the prohibition of the inter-provincial transport can
prevent their indiscriminate slaughter considering that they can be killed any
where, with no less difficulty in one province than in the other. Obviously,
retaining a carabao in one province will not prevent their slaughter there, any
more than moving them to another province will make it easier to kill them there.

The law is unconstitutional because it struck at once and pounced upon the
petitioner without giving him a chance to be heard, thus denying him the
centuries-old guarantee of elementary fair play.

Since the Executive Order in question is a penal law, then violation thereof should
be pronounce not by the police BUT BY A COURT OF JUSTICE, WHICH
ALONE WOULD HAVE HAD THE AUTHORITY TO IMPOSE THE
PRESCRIBED PENALTY, AND ONLY AFTER TRIAL AND CONVICTION
OF THE ACCUSED.

Also, there is no reasonable guidelines or bases of the Director of Animal Industry


or the Chairman of the NATIONAL Meat Inspection Commission in the
disposition of the carabaos or carabeef other than what "they may see fit" which is
very dangerous and could result to opportunities for partiality and abuse, and even
graft and corruption.

The Executive Order is, therefore, invalid and unconstitutional and not a valid
police power measure because the METHOD EMPLOYED TO CONSERVE
CARABAOS IS NOT REASONABLY NECESSARY TO THE PURPOSE OF
THE LAW AND, WORSE IS UNDULY OPPRESSIVE. DUE PROCESS IS
VIOLATED BECAUSE THE OWNER OF THE PROPERTY CONFISCATED IS
DENIED THE RIGHT TO BE HEARD IN HIS DEFENSE AND IS
IMMEDIATELY CONDEMNED AND PUNISHED. THE CONFERMENT ON
THE ADMINISTRATIVE AUTHORITIES (like the police) OF THE POWER TO
ADJUDGE THE GUILT OF THE SUPPOSED OFFENDER IS A CLEAR
ENCROACHMENT OF JUDICIAL FUNCTIONS AND MILITATES AGAINST
THE DOCTRINE OF SEPARATION OF POWERS.

Also, there is undue delegation of legislative power to the officers mentioned


therein (Director of Animal Industry and Head of the National Meat Commission)
because they were given unlimited discretion in the distribution of the property
confiscated.

5. Read:

1. JMM Promotions vs. CA, 260 SCRA 319


2. ERMITA-MALATE HOTEL VS. MAYOR OF MANILA, July 31, 1967;

3. ICHONG VS. HERNANDEZ, 101 Phil. 1155


4. CHURCHILL VS. RAFFERTY, 32 Phil. 580
5. PEOPLE VS. POMAR, 46 Phil. 447
6. US VS. TORIBIO, 15 Phil. 85
7. VELASCO VS. VILLEGAS, February 13, 1983
8. ILOILO ICE & COLD STORAGE VS. MUNICIPAL COUNCIL, 24 Phil. 471
9. AGUSTIN VS. EDU, 88 SCRA 195
10. TAXICAB OPERATORS VS. BOT, 119 SCRA 597
11. BAUTISTA VS. JUINIO, 127 SCRA 329

A law prohibiting the use of Heavy and Extra Heavy Vehicles on weekends and holidays when
there is energy crisis is a valid police power measure.

MARY CONCEPCION-BAUTISTA VS. ALFREDO JUINIO, ET AL, 127


SCRA 329
Fernando, C.J.

Facts:
1. On May 31, 1979, President Marcos issued Letter of Instruction No. 869
prohibiting the use of private motor vehicles with H (Heavy Vehicles) and EH
(Extra Heavy Vehicles) on week-ends and holidays from 12:00 a.m. Saturday
morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of
the day after the holiday. Motor vehicles of the following classifications are
however, exempted:

1. S----service;
2. T----Truck;

3. DPL--Diplomatic;
4. CC---Consular Corps; and
5. TC---Tourist Cars

2. On June 11, 1979, the then Commissioner of Land Transportation, ROMEO


EDU issued Circular No. 39 imposing "the penalties of fine, confiscation of
vehicle and cancellation of registration on owners of the above-specified found
violating such letter of Instructions";

3. Bautista is questioning the constitutionality of the LOI and the Implementing


Circular on the grounds that:

a. The banning of H and EH vehicles is unfair, discriminatory, and arbitrary and


thus contravenes the EQUAL PROTECTION CLAUSE; and

b. The LOI denies the owners of H and EH vehicles of due process, more
specifically of their right to use and enjoy their private property and of their
freedom to travel and hold family gatherings, reunions, outings on week-ends and
holidays, while those not included in the prohibition are enjoying unrestricted
freedom;

c. The Circular violates the prohibition against undue delegation of legislative


power because the LOI does not impose the penalty of confiscation.

HELD:
1. It must be pointed out that the LOI was promulgated to solve the oil crisis
which was besetting the country at that time. It was therefore a valid police power
measure to ensures the country's economy as a result of spiralling fuel prices. In
the interplay of Bautista's right to due process and the exercise of police power by
the State, the latter must be given leeway. The police power is intended to
promote public health, public morals, public safety and general welfare.

2. The petitioners' claim that their right to equal protection was violated is without
basis. This is so because there is a valid classification in this case. Definitely,
Heavy and Extra-Heavy vehicles consume more gasoline that the other kinds of
vehicles and it is but proper to regulate the use of those which consumes more
gasoline. If all the owner of H and EH vehicles are treated in the same fashion, or
whatever restrictions cast on some in the group is held equally binding on the rest,
there is no violation of the equal protection clause.

3. The penalty of "impounding" the vehicle as embodied in Circular No. 39 has


no statutory basis. Therefore, it is not valid being an "ultra vires".

12. ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY OF AGRARIAN


REFORM, 175 SCRA 343
13. DECS VS. SAN DIEGO, 180 SCRA 533
14. VILLANUEVA VS. CASTANEDA, September 21, 1987

5-a. Not a valid exercise of police power

CITY GOVERNMENT OF QUEZON CITY VS. ERICTA, 122 SCRA 759

CHAPTER IIDUE PROCESS

Section 1---NO PERSON SHALL BE


DEPRIVED OF LIFE, LIBERTY OR
PROPERTY WITHOUT DUE PROCESS OF
LAW, NOR SHALL ANY PERSON BE DENIED
EQUAL PROTECTION OF THE LAWS.

Kinds of Due Process:

1. substantive due process---requires the intrinsic validity of the law in interfering with the
rights of the person to life, liberty or property. In short, it is to determine whether it has a
valid governmental objective like for the interest of the public as against mere particular
class.
2. Procedural due process---one which hears before it condemns as pointed out by Daniel
Webster.

Due process is a law which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE)

Due process have different requisites in:

1. Due process before judicial bodies or judicial due process;


2. Due process before administrative bodies;
3. Due process before the labor tribunals; and
4. Due process involving students.

If the proceeding is not covered by any of the above, due process may not be invoked if one
was not given the right to be heard.

Illustrative case:

DUE PROCESS

JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR, JR.,


RODOLFO G.VALENCIA, DANILO E. SUAREZ,
SOLOMON R. CHUNGALAO, SALVACION ZALDIVARPEREZ, HARLIN CAST-ABAYON, MELVIN G.MACUSI and
ELEAZAR P. QUINTO vs. COMELEC, MANUEL ROXAS II,
FRANKLIN DRILON and J.R. NEREUS ACOSTA , G.R. No.
188920
ABAD, J.:
On July 5, 2005 respondent Franklin M. Drilon , then the president of the Liberal
Party (LP), announced his partys withdrawal of support for the administration of
President Gloria Macapagal-Arroyo. But petitioner Jose L. Atienza, Jr., LP Chairman,
and a number of party members denounced Drilons move, claiming that he made the
announcement without consulting his party.
On March 2, 2006 petitioner Atienza hosted a party conference to supposedly
discuss local autonomy and party matters but, when convened, the assembly proceeded to
declare all positions in the LPs ruling body vacant and elected new officers, with Atienza
as LP president. Respondent Drilon immediately filed a petition with the Commission on
Elections (COMELEC) to nullify the elections. He claimed that it was illegal considering
that the partys electing bodies, the National Executive Council (NECO) and the National
Political Council (NAPOLCO), were not properly convened. Drilon also claimed that
under the amended LP Constitution, party officers were elected to a fixed three-year term
that was yet to end on November 30, 2007.
On the other hand, petitioner Atienza claimed that the majority of the LPs NECO
and NAPOLCO attended the March 2, 2006 assembly. The election of new officers on
that occasion could be likened to people power, wherein the LP majority removed
respondent Drilon as president by direct action. Atienza also said that the amendments to
the original LP Constitution, or the Salonga Constitution, giving LP officers a fixed threeyear term, had not been properly ratified. Consequently, the term of Drilon and the other
officers already ended on July 24, 2006
On October 13, 2006, the COMELEC issued a resolution, partially granting
respondent Drilons petition. It annulled the March 2, 2006 elections and ordered the
holding of a new election under COMELEC supervision. It held that the election of
petitioner Atienza and the others with him was invalid since the electing assembly did not
convene in accordance with the Salonga Constitution. But, since the amendments to the
Salonga Constitution had not been properly ratified, Drilons term may be deemed to
have ended. Thus, he held the position of LP president in a holdover capacity until new
officers were elected.
Both sides of the dispute went to the Supreme Court to challenge the COMELEC
rulings. On April 17, 2007 a divided Court issued a resolution, granting respondent
Drilons petition and denying that of petitioner Atienza. The Court held, through the

majority, that the COMELEC had jurisdiction over the intra-party leadership dispute; that
the Salonga Constitution had been validly amended; and that, as a consequence,
respondent Drilons term as LP president was to end only on November 30, 2007.
Subsequently, the LP held a NECO meeting to elect new party leaders before
respondent Drilons term expired. Fifty-nine NECO members out of the 87 who were
supposedly qualified to vote attended. Before the election, however, several persons
associated with petitioner Atienza sought to clarify their membership status and raised
issues regarding the composition of the NECO. Eventually, that meeting installed
respondent Manuel A. Roxas II (Roxas) as the new LP president.
On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G.
Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin
Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for mandatory
and prohibitory injunction before the COMELEC against respondents Roxas, Drilon and
J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas
from assuming the presidency of the LP, claiming that the NECO assembly which elected
him was invalidly convened. They questioned the existence of a quorum and claimed
that the NECO composition ought to have been based on a list appearing in the partys
60th Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as
common exhibit in the earlier cases and it showed that the NECO had 103 members.
Petitioners Atienza, et al. also complained that Atienza, the incumbent party
chairman, was not invited to the NECO meeting and that some members, like petitioner
Defensor, were given the status of guests during the meeting. Atienzas allies allegedly
raised these issues but respondent Drilon arbitrarily thumbed them down and railroaded
the proceedings. He suspended the meeting and moved it to another room, where Roxas
was elected without notice to Atienzas allies.
On the other hand, respondents Roxas, et al. claimed that Roxas election as LP
president faithfully complied with the provisions of the amended LP Constitution. The
partys 60th Anniversary Souvenir Program could not be used for determining the NECO
members because supervening events changed the bodys number and composition.
Some NECO members had died, voluntarily resigned, or had gone on leave after
accepting positions in the government. Others had lost their re-election bid or did not run
in the May 2007 elections, making them ineligible to serve as NECO members. LP
members who got elected to public office also became part of the NECO. Certain
persons of national stature also became NECO members upon respondent Drilons
nomination, a privilege granted the LP president under the amended LP Constitution. In
other words, the NECO membership was not fixed or static; it changed due to
supervening circumstances.
Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza,
Zaldivar-Perez, and Cast-Abayon resigned for holding the illegal election of LP officers
on March 2, 2006. This was pursuant to a March 14, 2006 NAPOLCO resolution that
NECO subsequently ratified. Meanwhile, certain NECO members, like petitioners

Defensor, Valencia, and Suarez, forfeited their party membership when they ran under
other political parties during the May 2007 elections. They were dropped from the roster
of LP members.
On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners
Atienza, et al.s petition. It noted that the May 2007 elections necessarily changed the
composition of the NECO since the amended LP Constitution explicitly made incumbent
senators, members of the House of Representatives, governors and mayors members of
that body. That some lost or won these positions in the May 2007 elections affected the
NECO membership. Petitioners failed to prove that the NECO which elected Roxas as
LP president was not properly convened.
As for the validity of petitioners Atienza, et al.s expulsion as LP members, the
COMELEC observed that this was a membership issue that related to disciplinary action
within the political party. The COMELEC treated it as an internal party matter that was
beyond its jurisdiction to resolve.
Without filing a motion for reconsideration of the COMELEC resolution,
petitioners Atienza, et al. filed this petition for certiorari under Rule 65.
ISSUE
Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.s
constitutional right to due process by the latters expulsion from the party.
HELD:
Petitioners Atienza, et al. argue that their expulsion from the party is not a simple
issue of party membership or discipline; it involves a violation of their constitutionallyprotected right to due process of law. They claim that the NAPOLCO and the NECO
should have first summoned them to a hearing before summarily expelling them from the
party. According to Atienza, et al., proceedings on party discipline are the equivalent of
administrative proceedings and are, therefore, covered by the due process requirements
laid down in Ang Tibay v. Court of Industrial Relations.
But the requirements of administrative due process do not apply to the internal affairs
of political parties. The due process standards set in Ang Tibay cover only
administrative bodies created by the state and through which certain governmental
acts or functions are performed. An administrative agency or instrumentality
contemplates an authority to which the state delegates governmental power for the
performance of a state function. The constitutional limitations that generally
apply to the exercise of the states powers thus, apply too, to administrative bodies
The constitutional limitations on the exercise of the states powers are found in
Article III of the Constitution or the Bill of Rights. The Bill of Rights, which guarantees
against the taking of life, property, or liberty without due process under Section 1 is
generally a limitation on the states powers in relation to the rights of its citizens. The

right to due process is meant to protect ordinary citizens against arbitrary


government action, but not from acts committed by private individuals or entities.
In the latter case, the specific statutes that provide reliefs from such private acts
apply. The right to due process guards against unwarranted encroachment by the
state into the fundamental rights of its citizens and cannot be invoked in private
controversies involving private parties.
Although political parties play an important role in our democratic set-up as an
intermediary between the state and its citizens, it is still a private organization, not a state
instrument. The discipline of members by a political party does not involve the right to
life, liberty or property within the meaning of the due process clause. An individual has
no vested right, as against the state, to be accepted or to prevent his removal by a political
party. The only rights, if any, that party members may have, in relation to other party
members, correspond to those that may have been freely agreed upon among themselves
through their charter, which is a contract among the party members. Members whose
rights under their charter may have been violated have recourse to courts of law for the
enforcement of those rights, but not as a due process issue against the government or any
of its agencies.
But even when recourse to courts of law may be made, courts will ordinarily not
interfere in membership and disciplinary matters within a political party. A political party
is free to conduct its internal affairs, pursuant to its constitutionally-protected right to free
association. In Sinaca v. Mula, the Court said that judicial restraint in internal party
matters serves the public interest by allowing the political processes to operate without
undue interference. It is also consistent with the state policy of allowing a free and open
party system to evolve, according to the free choice of the people.
To conclude, the COMELEC did not gravely abuse its discretion when it upheld
Roxas election as LP president but refused to rule on the validity of Atienza, et al.s
expulsion from the party. While the question of party leadership has implications on the
COMELECs performance of its functions under Section 2, Article IX-C of the
Constitution, the same cannot be said of the issue pertaining to Atienza, et al.s expulsion
from the LP. Such expulsion is for the moment an issue of party membership and
discipline, in which the COMELEC cannot intervene, given the limited scope of its
power over political parties.
5. Requisites of judicial due process.

1. BANCO ESPANOL VS. PALANCA, 37 Phil. 921

Requisites:

1. There must be an impartial court or tribunal clothed with judicial power to hear and
decide the matter before it;
2. Jurisdiction must be lawfully acquired over the person of the defendant or over the
property subject of the proceedings;
3. The defendant must be given the opportunity to be heard;
4. Judgment must be rendered only after lawful hearing.

a. GALMAN VS. PAMARAN (the 1st case)


2. IMELDA MARCOS VS. SANDIGANBAYAN, October 6, 1998

IMELDA R. MARCOS VS. SANDIGANBAYAN, G.R. No. 126995, October 6, 1998

Purisima, J.

Facts:

1. On June 8, 1984, IMELDA MARCOS and JOSE DANS, as Chairman and Vice
Chairman of the Light Railway Transit Authority (LRTA) entered into a Lease Contract
with the Philippine General Hospital Foundation (PGHFI) involving an LRTA property in
Pasay City for P102,760.00 per month for 25 years;
2. On June 27,1984, the PGHFI subleased the said property for P734,000.00 per month to
the Transnational Construction Corporation represented by one Ignacio Jumenez;
3. After petitioners husband was deposed as President of the Philippines, she and Dans
were charged of alleged violation of Section 3 [g] of RA 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act before the Sandiganbayan;
4. After trial , the First Division of the Sandiganbayan failed to comply with the legal
requirement that all the 3 justices must be unanimous in its Decision because Justice

Garchitorena and Justice Jose Balajadia voted for the conviction of both accused while
Justice Narciso Atienza voted to acquit them;
5. Thereafter, Justice Garchitorena as Presiding Justice issued Administrative Order No.
288-93 constituting a Special Division of five and designating Justices Augusto Amores
and Cipriano del Rosario;
6. On September 21, 1993, Justice Amores wrote Justice Garchitorena that he be given 15
days his Manifestation. On the same date, however, Justice Garchitorena dissolved the
division of 5 allegedly because he and Justice Balajadia had agreed to the opinion of
Justice del Rosario;
7. On September 24, 1993, a Decision was rendered convicting the petitioner and Dans of
violation of Sec. 3 [g] of RA 3019;
8. On June 29, 1998, the Third Division of the Supreme Court by a vote of 3-2 affirmed the
conviction of the petitioner but acquitted DANS;
9. Petitioner then filed a Motion for Reconsideration and at the same time prayed that her
Motion be heard by the Supreme Court en banc claiming that her right to due process of
law, both substantive and procedural, was violated:

1. as a result of the fact that she was convicted as a result of the alleged disparity of the
rentals agreed upon with PGHFI and the subsequent sub-lease contract between PGHFI
and Transnational Construction Corporation; and
2. the First Division convicted her after Justice Garchitorena dissolved the Special Division
of 5 after a lunch in a Quezon City restaurant where they agreed to convict her in one
case and acquit her in her other cases. The said meeting was attended by another justice
who is not a member of the First Division or the Special Division in violation of the
Rules of the Sandiganbayan which requires that sessions of the court shall be done only
in its principal office in Manila and that only justices belonging to the division should
join the deliberations.

Held:

The petitioner is hereby acquitted.

1. The great disparity between the rental price of the lease agreement signed by
the petitioner (P102,760.00 per month) and the sub-lease rental (P734,000.00 per
month) does not necessarily render the monthly rate of P102,760.00 manifestly
and grossly disadvantageous to the government in the absence of any evidence
using rentals of adjacent properties showing that the rentals in the property subject
of the lease agreement is indeed very low. NO EVIDENCE WHATSOEVER
WAS PRESENTED BY THE PROSECUTION REGARDING THE RENTAL
RATE OF ADJACENT PROPERTIES.. As such, the prosecution failed to prove
the guilt of the petitioner reasonable doubt.

2. The court notes likewise the bias and prejudice of Presiding Justice
Garchitorena against the petitioner as shown by his leading, misleading and
baseless hypothetical questions of said justice to RAMON F. CUERVO, witness
for the petitioner. Said justice asked 179 questions to the witness as against the
prosecutor who cross-examined the witness and asked 73. Said number of
questions could no longer be described as clarificatory questions. Another
ground therefore for the acquittal of the petitioner is that she was denied
IMPARTIAL TRIAL before the Sandiganbayan. This is one reason why the case
could no longer be remanded to the Sandiganbayan especially so that the other
Sandiganbayan Justices in the Special Division of 5 have retired. There is
therefore no compelling reason why the case should still be remanded to the lower
court when all the evidence are already with the Supreme Court.

(NOTE: The vote was 9-5 for Acquittal. CJ Narvasa, Justices Regalado, Davide,
Jr., Romero, and Panganiban voted for conviction while Justice Vitug was the
only Justice who voted for the return of the case to the Sandiganbayan to allow
the corrections of the perceived irregularities in the proceedings below.)

3. DBP VS. CA, January 29, 1999 (Repeated failure of a party to present evidence
justifies the court to consider the case submitted for decision and hold that the party
has waived the right to present evidence)
4. MATUGUINA VS. CA, 263 SCRA 490
5. PEOPLE VS. CA, 262 SCRA 452
6. JAVIER VS. COMELEC, 144 SCRA 194

JAVIER VS. COMELEC


G.R. No.L- 68379-812, September 22, 1986

FACTS:

1. The petitioner Evelio Javier and the private respondent Arturo Pacificador were
candidates in Antique for the Batasang Pambansa election in May 1984;

2. Alleging serious anomalies in the conduct of the elections and the canvass of
the election returns, Javier went to the COMELEC to prevent the impending
proclamation of his rival;

3. On May 18, 1984, the Second Division of the COMELEC directed the
provincial board of canvassers to proceed with the canvass but to suspend the
proclamation of the winning candidate until further orders;

4. On June 7, 1984, the same Second Division ordered the board to immediately
convene and to proclaim the winner without prejudice to the outcome of the
petition filed by Javier with the COMELEC;

5. On certiorari with the S.C. the proclamation made by the Board of Canvassers
was set aside as premature, having been made before the lapse of the 5 - day
period of appeal, which the petitioner seasonably made;

6. On July 23, 1984 the Second Division itself proclaimed Pacificador the elected
assemblyman of Antique.

ISSUE:

Was the Second Division of the COMELEC, authorized to promulgate its decision
of July 23, 1984 proclaiming Pacificador the winner in the election ?

APPLICABLE PROVISIONS OF THE CONSITUTION:

The applicable provisions of the 1973 Constitution are Art. XII-C, secs. 2 and 3,
which provide:

"Section 2. Be the sole judge of all contests relating to the election, returns and
qualifications of all members of the Batasang Pambansa and elective provincial
and city officials."

"Section 3. The Commission on Elections may sit en banc or in three divisions.


All election cases may be heard and decided by divisions except contests
involving members of the Batasang Pambansa, which shall be heard and
decided en banc. Unless otherwise provided by law, all election cases shall be
decided within ninety days from the date of their submission for decision."

CONTENTIONS OF THE PARTIES:

Petitioner:

The proclamation made by the Second Division is invalid because all contests
involving members of the Batasang Pambansa come under the jurisdiction of the
Commission on Elections en banc.

Respondents:

Only "contests" need to be heard and decided en banc, all other cases can be - in
fact, should be - filed with and decided only by any of the three divisions.

There is a difference between "contests" and "cases" and also a difference


between "pre-proclamation controversies" and "election protests". The preproclamation controversy between the petitioner and the private respondent was
not yet a contest at the time and therefore could be validly heard by a mere
division of the Commission on elections, consonant with Sec. 3. The issue at that
stage was still administrative and could be resolved by a division.

HELD:

a. The S.C. decided to resolve the case even if the Batasang Pambansa had already
been abolished by the Aquino government, and even if Javier had already died in
the meantime. This was because of its desire for this case to serve as a guidance
for the future. Thus it said: "The Supreme Court is not only the highest arbiter of
legal questions but also the conscience of the government. The citizen comes to us
in quest of law but we must also give him justice. The two are not always the
same. There are times when we cannot grant the latter because the issue has been
settled and decision is no longer possible according to law. But there are also
times when although the dispute has disappeared, as in this case, it nevertheless
cries out to be resolved. Justice demands that we act, then, not only for the
vindication of the outraged right, though gone, but also for the guidance of and as
a restraint upon the future."

b. The S.C. held on the main issue that in making the COMELEC the sole judge
of all contests involving the election, returns and qualifications of the members of
the Batasang Pambansa and elective provincial and city officials, the Constitution
intended to give it full authority to hear and decide these cases from beginning to
end and on all matter related thereto, including those arising before the
proclamation of the winners.

The decision rendered by the Second Division alone was therefore set aside as
violative of the Constitution. The case should have been decided en banc.

c. Pre-proclamation controversies became known and designated as such only


because of Sec. 175 of the 1978 Election Code. The 1973 Constitution could not
have therefore been intended to have divided contests between pre and post
proclamation when that Constitution was written in 1973.

d. The word "contests" should not be given a restrictive meaning; on the contrary,
it should receive the widest possible scope conformably to the rule that the words
used in the Constitution should be interpreted liberally. As employed in the 1973
Constitution, the term should be understood as referring to any matter involving
the title or claim of title to an elective office, made before or after the
proclamation of the winner, whether or not the contestant is claiming the office in
dispute.

e. There was also a denial of due process. One of the members of the Second
Division, Commissioner Jaime Opinion was a law partner of Pacificador. He
denied the motion to disqualify him from hearing the case. The Court has
repeatedly and consistently demanded "the cold neutrality of an impartial
judge" as the indispensable imperative of due process. To bolster that
requirement we have held that the judge must not only be impartial but must also
appear to be impartial as an added assurance to the parties that his decision will be
just.

7. AZUL VS. CASTRO, 133 SCRA 271


8. PADERANGA VS. AZURA, 136 SCRA 266
9. DAVID VS. AQUILIZAN, 94 SCRA 707
10. LORENZANA VS. CAYETANO, 78 SCRA 485 (respondent was not a party to the
ejectment case) so to enforce the decision on her violates her right to due process of
law
11. ZAMBALES CHROMITE MINING VS. CA, 94 SCRA 261
12. ANZALDO VS. CLAVE, 119 SCRA 353

13. SINGSON VS. NLRC, 273 SCRA 258


14. ANZALDO VS. CLAVE, 119 SCRA 353
15. MAYOR ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245

MAYOR BAYANI ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245

Vitug, J.

Mayor Alonte of Binan, Laguna was charged of rape before Branch 25,
RTC of Laguna. However, as a result of a petition for a transfer of venue filed by
the prosecution and granted by the SC, his case was transferred to RTC Branch
53, Manila, presided over by the respondent judge.

After the petitioners arraignment, the prosecution submitted an


AFFIDAVIT OF DESISTANCE signed by the private complainant JUVIE-LYN
PUNONGBAYAN where she prayed for the withdrawal of the case because she is
no longer interested in pursuing the same with no intention of re-filing the said
case in the future.

Pending resolution of the said motion to withdraw, the petitioner filed a


motion for bail. The same was not resolved despite several motions filed by the
petitioner to resolve the same.

On December 17, 1997, counsel for the petitioner, ATTY. PHILIP


SIGFRID FORTUN, received a notice from the respondent judge notifying him of
the promulgation of the decision in this case despite the fact that the prosecution
and the defense have not presented their evidence in court.

On December 18, 1997, the respondent judge issued a Decision convicting


the petitioner of rape and sentenced to suffer a penalty of RECLUSION
PERPETUA.

Issue:

Whether or not the petitioner was denied his right to due process of law.

Held:

In order that an accused in a criminal proceedings is deemed to have been


given the right to due process of law, the following requisites must be complied
with before a decision is rendered:

1. the court or tribunal trying the case is clothed with jurisdiction to hear and determine the
matter before it;
2. that jurisdiction was lawfully acquired by it over the person of the accused;
3. that the accused is given the opportunity to be heard; and
4. that judgment is rendered only upon lawful hearing (PEOPLE VS. DAPITAN, 197 SCRA
378)

The act of the respondent judge in rendering a decision without even


giving the petitioner the right to adduce evidence in his behalf is a gross violation
of his right to due process of law. The Decision rendered is NULL AND VOID for
want of due process.

As long as there is a notice to a party in the hearing of a motion on the custody of their children
in a Declaration of Nullity of Marriage case, there is no violation of the right to due process.

SUSIE CHAN-TAN vs. JESSE TAN, G.R. No. 167139,


February 25, 2010
ISSUE:
Petitioner raises the question of whether the 30 March 2004 decision and the 17
May 2004 resolution of the trial court giving custody to their children have attained
finality despite the alleged denial of due process since she was not present during the
hearing.
HELD:
Petitioner contends she was denied due process when her counsel failed to file
pleadings and appear at the hearings for respondents omnibus motion to amend the
partial judgment as regards the custody of the children and the properties in her
possession. Petitioner claims the trial court issued the 17 May 2004 resolution relying
solely on the testimony of respondent. Respondent stresses neither petitioner nor her
counsel appeared in court at the hearings on respondent's omnibus motion or on
petitioners motion to dismiss.
We also ruled in Tuason that notice sent to the counsel of record is binding upon the
client and the neglect or failure of the counsel to inform the client of an adverse judgment
resulting in the loss of the latters right to appeal is not a ground for setting aside a
judgment valid and regular on its face.
Further, petitioner cannot claim that she was denied due process. While she may
have lost her right to present evidence due to the supposed negligence of her counsel, she
cannot say she was denied her day in court. Records show petitioner, through counsel,
actively participated in the proceedings below, filing motion after motion. Contrary to
petitioners allegation of negligence of her counsel, we have reason to believe the
negligence in pursuing the case was on petitioners end, as may be gleaned from her
counsels manifestation dated 3 May 2004:
Undersigned Counsel, who appeared for petitioner, in the nullity
proceedings, respectfully informs the Honorable Court that she has not
heard from petitioner since Holy Week. Attempts to call petitioner have
failed.
Undersigned counsel regrets therefore that she is unable to respond in an
intelligent manner to the Motion (Omnibus Motion) filed by respondent.
Clearly, despite her counsels efforts to reach her, petitioner showed utter disinterest
in the hearings on respondents omnibus motion seeking, among others, custody of the
children. The trial judge was left with no other recourse but to proceed with the hearings

and rule on the motion based on the evidence presented by respondent. Petitioner cannot
now come to this Court crying denial of due process.
The right of the accused to due process of law was violated when the judge issued a
warrant for her arrest even though she has not received any notice for her arraignment
before the Municipal Trial Court of Baguio City because the notice was actually sent to her
through the Chief of Police of Quezon City.

NORYN S. TAN VS. JUDGE MARIA


CLARITA CASUGA-TABIN, A.M. No.
MTJ-09-1729, January 20, 2009
AUSTRIA-MARTINEZ, J.:
FACTS:
Noryn S. Tan (complainant) filed a Complaint dated April 2, 2007 against Judge
Maria Clarita Casuga-Tabin (respondent) of the Municipal Trial Court in Cities (MTCC),
Branch 4, Baguio City for denial of due process relative to Criminal Case No. 118628.
Complainant avers: On November 9, 2006, the Philippine National Police (PNP)
Quezon City Police District (QCPD) served her a warrant of arrest dated October 13,
2006, issued by the MTCC Baguio City, Branch 4, presided by respondent, relative to
Criminal Case No. 118628 for alleged violation of Batas Pambansa Blg. 22. It was only
then that she learned for the first time that a criminal case was filed against her before the
court. She was detained at the Quezon City Hall Complex Police Office and had to post
bail of P1,000.00 before the Office of the Executive Judge of the Regional Trial Court
(RTC) of Quezon City for her temporary release. Upon verification, she learned that
respondent issued on August 8, 2006 an Order directing her to appear before the court on
October 10, 2006 for arraignment. It was sent by mail to PNP Quezon City for service to
her. However, she did not receive any copy of the Order and up to the present has not
seen the same; hence, she was not able to attend her arraignment. She also found out that
there was no proof of service of the Order or any notice to her of the arraignment. This
notwithstanding, respondent issued a warrant for her arrest. Complainant alleges that she
was deeply aggrieved and embarrassed by the issuance of the warrant for her arrest
despite the fact that she was never notified of her arraignment. Complainant prayed that
the appropriate investigation be conducted as to the undue issuance of a warrant for her
arrest.
In her Comment dated July 5, 2007, respondent answered: She issued the warrant
of arrest because when the case was called for appearance, the complainant, as accused
therein, failed to appear. Prior to the issuance of the warrant of arrest, her staff sent by
registered mail the court's Order dated August 8, 2006 addressed to complainant through
the Chief of Police, PNP, 1104, Quezon City directing complainant to appear on October
10, 2006 at 8:30 a.m. for the arraignment and preliminary conference in Criminal Case

No. 118628, as proven by Registry Receipt No. 0310. It is true that the return on the
court's Order dated August 8, 2006 had not yet been made by the QC Police on or before
October 10, 2006. Nonetheless, she issued the warrant of arrest in good faith and upon
the following grounds: (a) under Sec. 3 of Rule 131 of the Rules of Court, the court was
entitled to presume that on October 10, 2006, after the lapse of a little over two months,
official duty had been regularly performed and a letter duly directed and mailed had been
received in the regular course of mail; and (b) Sec. 12 of the 1983 Rule on Summary
Procedure in Special Cases provides that bail may be required where the accused does not
reside in the place where the violation of the law or ordinance was committed. The
warrant of arrest she issued was meant to implement this provision, which was not
repealed by the 1991 Revised Rule on Summary Procedure, since complainant is a
resident of Quezon City and not of Baguio City. If her interpretation was erroneous, she
(respondent) believes that an administrative sanction for such error would be harsh and
unsympathetic. She has nothing personal against complainant and did not want to
embarrass or humiliate her. She issued the warrant in the honest belief that her act was in
compliance with the rules. She prays that the case against her be dismissed and that a
ruling on the interpretation of Secs. 10 & 12, of the 1983 Rule on Summary Procedure in
Special Cases, in relation to Sec. 16 of the 1991 Revised Rule on Summary Procedure be
made for the guidance of the bench and bar.
HELD:
Whenever a criminal case falls under the Summary Procedure, the general rule is
that the court shall not order the arrest of the accused, unless the accused fails to appear
whenever required. This is clearly provided in Section 16 of the 1991 Revised Rule on
Summary Procedure which states:
Sec. 16. Arrest of accused. - The court shall not order the
arrest of the accused except for failure to appear whenever required.
Release of the person arrested shall either be in bail or on recognizance by
a responsible citizen acceptable to the court. (Emphasis supplied)
In this case, respondent claims that the issuance of a warrant for the arrest of
complainant was justified, since complainant failed to appear during the arraignment in
spite of an order requiring her to do so. Respondent admits, however, that a copy of the
Order dated August 8, 2006, was sent to complainant through the Chief of Police, PNP,
1104, Quezon City.
While it is true that the Rules of Court provides for presumptions, one of which is
that official duty has been regularly performed, such presumption should not be the sole
basis of a magistrate in concluding that a person called to court has failed to appear as
required, which in turn justifies the issuance of a warrant for her arrest, when such notice
was not actually addressed to her residence but to the police in her city. So basic and
fundamental is a person's right to liberty that it should not be taken lightly or brushed
aside with the presumption that the police through which the notice had been sent,
actually served the same on complainant whose address was not even specified.

The Court has held that a judge commits grave abuse of authority when she
hastily issues a warrant of arrest against the accused in violation of the summary
procedure rule that the accused should first be notified of the charges against him and
given the opportunity to file his counter-affidavits and countervailing evidence .
Hence, complainants right to due process was violated.
Considering that this is respondent's first administrative infraction in her more
than 8 years of service in the judiciary, which serves to mitigate her liability, the Court
holds the imposition of a fine in the amount of P10,000.00 to be proper in this case.
6. Procedural due process before administrative bodies

1. TIBAY VS. CIR, 69 Phil. 635

Requisites:

1. the right to a hearing which includes the right to present evidence;


2. the tribunal must consider the evidence presented;
3. the decision must have something to support itself;
4. the evidence must be substantial;
5. the decision must be based on the evidence presented during the hearing;
6. the tribunal or body must act on its own independent consideration of the law or
facts;
7. the board or body shall in all controversial questions, render its decision in such a
manner that the parties to the proceedings can know the various issues involved.

2. AMERICAN TOBACCO VS. DIRECTOR, 67 SCRA 287

3. MANILA ELECTRIC COMPANY VS. NLRC, 263 SCRA 531

4. DELGADO VS. CA, November 10, 1986

If an accused was represented by a non-lawyer during the trial (though she


thought that he is a lawyer), her right to due process was violated and
therefore entitled to a new trial.

e. PEDRO CONSULTA VS. PEOPLE, G.R. No. 179462, February 12, 2009

ISSUE:
Whether or not appellant was denied due process having been represented by a
fake lawyer during arraignment, pre-trial and presentation of principal
witnesses for the prosecution.

HELD:

On the matter of accused-appellants claim of having been denied due process, an


examination of the records shows that while accused-appellant was represented by
Atty. Jocelyn P. Reyes, who seems not a lawyer, during the early stages of trial,
the latter withdrew her appearance with the conformity of the former as early as
July 28, 2000 and subsequently, approved by the RTC in its Order dated August 4,
2000. Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao
from the Public Defenders (Attorneys) Office of Makati City. Since the accusedappellant was already represented by a member of the Philippine Bar who
principally handled his defense, albeit unsuccessfully, then he cannot now be
heard to complain about having been denied of due process.

That appellants first counsel may not have been a member of the bar does not dent the proven
fact that appellant prevented Nelia and company from proceeding to their destination. Further,
appellant was afforded competent representation by the Public Attorneys Office during the
presentation by the prosecution of the medico-legal officer and during the presentation of his
evidence. People v. Elesterio1[4] enlightens:

As for the circumstance that the defense counsel turned out later to be a nonlawyer, it is observed that he was chosen by the accused himself and that his
representation does not change the fact that Elesterio was undeniably carrying an
unlicensed firearm when he was arrested. At any rate, he has since been
represented by a member of the Philippine bar, who prepared the petition for
habeas corpus and the appellants brief.

7. Procedural due process in disciplinary actions against students

Academic freedom; due process in disciplinary actions involving students

DE LA SALLE UNIVERSITY VS. COURT OF APPEALS,


HON.WILFREDO D. REYES, in his capacity as Presiding Judge of Branch
36, Regional Trial Court of Manila, THE COMMISSION ON HIGHER
EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND
SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD
REVERENTE and ROBERTO VALDES, JR., G.R. No. 127980, December
19, 2007

REYES, R.T., J.:

THE FACTS:
PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente
and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were
expelled by the De La Salle University (DLSU) and College of Saint Benilde
(CSB) Joint Discipline Board because of their involvement in an offensive action
causing injuries to petitioner James Yap and three other student members of
Domino Lux Fraternity.

The mauling incidents were a result of a fraternity war. The victims,


namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael
Perez, are members of the Domino Lux Fraternity, while the alleged assailants,
private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente
and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity, a rival
fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint with the
Discipline Board of DLSU charging private respondents with direct assault.
Similar complaints were also filed by Dennis Pascual and Ericson Cano against
Alvin Lee and private respondents Valdes and Reverente. Thus, cases entitled De
La Salle University and College of St. Benilde v. Alvin Aguilar (ABBSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes,
Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (ABMGT/9153837) and Malvin A. Papio (AB-MGT/9251227) were docketed as
Discipline Case No. 9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to


private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing
them of the complaints and requiring them to answer. Private respondents filed
their respective answers.

Said notices issued by De La Salle Discipline Board uniformly stated as


follows:

Please be informed that a joint and expanded Discipline Board had been
constituted to hear and deliberate the charge against you for violation of CHED
Order No. 4 arising from the written complaints of James Yap, Dennis C.
Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled on April
19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give
testimony and present evidence in your behalf. You may be assisted by a lawyer
when you give your testimony or those of your witnesses.

During the proceedings before the Board on April 19 and 28, 1995, private
respondents interposed the common defense of alibi. No full-blown hearing was
conducted nor the students allowed to cross-examine the witnesses against them.

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a


Resolution finding private respondents guilty. They were meted the supreme
penalty of automatic expulsion pursuant to CHED Order No. 4. The dispositive
part of the resolution reads:

WHEREFORE, considering all the foregoing, the Board finds respondents


ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (ABPSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE
(AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby
orders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the


Board acquits him of the charge.

ISSUE

Were private respondents accorded due process of law because there was no full-blown
hearing nor were they allowed to cross-examine the witnesses against them?

H E L D:
Private respondents right to due process of law was not violated.
In administrative cases, such as investigations of students found
violating school discipline, [t]here are withal minimum standards which
must be met before to satisfy the demands of procedural due process and
these are: that (1) the students must be informed in writing of the nature and cause
of any accusation against them; (2) they shall have the right to answer the charges
against them and with the assistance if counsel, if desired; (3) they shall be
informed of the evidence against them; (4) they shall have the right to adduce

evidence in their own behalf; and (5) the evidence must be duly considered by the
investigating committee or official designated by the school authorities to hear
and decide the case.

Where a party was afforded an opportunity to participate in the


proceedings but failed to do so, he cannot complain of deprivation of due process.
Notice and hearing is the bulwark of administrative due process, the right to
which is among the primary rights that must be respected even in administrative
proceedings. The essence of due process is simply an opportunity to be heard, or
as applied to administrative proceedings, an opportunity to explain ones side or
an opportunity to seek reconsideration of the action or ruling complained of. So
long as the party is given the opportunity to advocate her cause or defend her
interest in due course, it cannot be said that there was denial of due process.

A formal trial-type hearing is not, at all times and in all instances, essential
to due process it is enough that the parties are given a fair and reasonable
opportunity to explain their respective sides of the controversy and to present
supporting evidence on which a fair decision can be based. To be heard does not
only mean presentation of testimonial evidence in court one may also be heard
through pleadings and where the opportunity to be heard through pleadings is
accorded, there is no denial of due process.

Private respondents were duly informed in writing of the charges against them by
the DLSU-CSB Joint Discipline Board through petitioner Sales. They were given
the opportunity to answer the charges against them as they, in fact, submitted their
respective answers. They were also informed of the evidence presented against
them as they attended all the hearings before the Board. Moreover, private
respondents were given the right to adduce evidence on their behalf and they did.
Lastly, the Discipline Board considered all the pieces of evidence submitted to it
by all the parties before rendering its resolution in Discipline Case No. 9495-325121.

Private respondents cannot claim that they were denied due process when
they were not allowed to cross-examine the witnesses against them. This
argument was already rejected in Guzman v. National University] where this Court
held that x x x the imposition of disciplinary sanctions requires observance of
procedural due process. And it bears stressing that due process in disciplinary
cases involving students does not entail proceedings and hearings similar to those

prescribed for actions and proceedings in courts of justice. The proceedings in


student discipline cases may be summary; and cross examination is not, x x x an
essential part thereof.

GUZMAN VS. NATIONAL UNIVERSITY


G.R. No. L-68288, July 11, 1986

FACTS:

Petitioners who are students of the National University were barred from
enrolment. The school claims that their scholastic standing is poor and that they
have been involved in activities that have disrupted classes and had conducted
mass actions without the required permits.

HELD:

a. It is apparent that despite the accusations of alleged violations hurled by the


school against the petitioners, the fact is that it had never conducted proceedings
of any sort to determine whether or not petitioners-students had indeed led or
participated "in activities within the university premises, conducted without prior
permit from school authorities, that disturbed or disrupted classes therein".

Also apparent is the omission of respondents to cite any duly published rule of
theirs by which students may be expelled or refused re-enrollment for poor
scholastic standing.

b. Under the Education Act of 1982, students have the right "to freely choose their
field of study subject to existing curricula and to continue their course therein up

to graduation, EXCEPT in case of academic deficiency, or violation of


disciplinary regulations."

The petitioner were denied of this right, and were being disciplined without due
process, in violation of the admonition in the Manual of Regulations for Private
Schools that "no penalty shall be imposed upon any student except for cause as
defined in *** (the) Manuel and/or in the school rules and regulations as duly
promulgated and only after due investigation shall have been conducted. It has
already been held in Berina vs. Philippine Maritime Institute, 117 SCRA 581,
that it is illegal of a school to impose sanctions on students without conducting
due investigation.

c. Of course, all schools have the power to adopt and enforce its rules. In fact the
maintenance of good school discipline is a duty specifically enjoined on every
private school. The Manual of Regulations for Private Schools provides that:

"* * The school rules governing discipline and the corresponding sanctions
therefor must be clearly specified and defined in writing and made known to the
students and/or their parents or guardians. Schools shall have the authority and
prerogative to promulgate such rules and regulations as they may deem necessary
from time to time effective as of the date of their promulgation unless otherwise
specified."

d. The imposition of disciplinary sanctions requires observance of procedural due


process. Due process in disciplinary cases involving students :

a. need not entail proceedings and hearing similar to those prescribed for actions
and proceedings in court of justice;

b. the proceedings may be summary;

c. cross-examination is not an essential part thereof.

But the S.C. said that the following minimum standards must be met to satisfy the
demands of procedural due process:

1. the students must be informed in writing of the nature and cause of any
accusation against them;

2. they shall have the right to answer the charges against them, with the assistance
of counsel;
3. they shall be informed of the evidence against them;

4. they shall have the right to adduce evidence in their own behalf;
5. the evidence must be duly considered by the investigating committee or official
designated by the school authorities to hear and decide the case.

1. BERINA VS. PMI, September 30, 1982


Due process in the dismissal of employees

Requisites of Due Process before the NLRC

1. Notice; and
2. Hearing

1. MGG Marine Services vs. NLRC, 259 SCRA 664


2. Philippine Savings Bank vs. NLRC, 261 SCRA 409

3. RAYCOR AIR CONTROL VS. NLRC, 261 SCRA 589


4. WALLEM MARITIME SERVICES VS. NLRC, 263 SCRA 174
5. SAMILLANO VS. NLRC, 265 SCRA 788
6. STOLT-NIELSEN VS. NLRC, 264 SCRA 307
7. GARCIA VS. NLRC, 264 SCRA 261

8. Effect of a Motion for Reconsideration to violation of the right to due process

1. CASUELA VS. OFFICE OF THE OMBUDSMAN, 276 SCRA 635


2. CORDENILLO VS. EXECUTIVE SECRETARY, 276 SCRA 652

9. In administrative proceedings, does due process require that [1] a party be assisted by
counsel and [2] be able to cross-examine the witnesses?

LUMIQUED VS. EXENEA, 282 SCRA 125

There is no law, whether the Civil Service Act or the Administrative Code of
1987, which provides that a respondent in an administrative case should be
assisted by counsel in order that the proceedings therein is considered valid. Not
only, that, petitioner herein was given the opportunity several times to engage the
services of a lawyer to assist him but he confidently informed the investigators
that he could protect himself.

Administrative Due Process before the Civil Service Commission does not require crossexamination of the complainant and his witnesses by the respondent.

ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No.


166809, April 22, 2008

THE FACTS:

Petitioner is the Regional Director of the Commission on Human Rights


(CHR) Region I, whose office is located in San Fernando City, La Union.
Respondent employees of the CHR Region I filed an Affidavit-Complaint dated
October 2, 1998 against petitioner alleging that he denied them the use of the
office vehicle assigned to petitioner, that petitioner still claimed transportation
allowance even if he was using the said vehicle, and that he certified that he did
not use any government vehicle, when in fact he did, in order to collect
transportation allowance.

Respondent filed his answer denying the allegations against him.

After a fact-finding investigation, the CSC Proper in CSC Resolution No.


99-1360 dated July 1, 1999 charged petitioner with Dishonesty and Grave
Misconduct for using a government vehicle in spite of his receipt of the monthly
transportation allowance and for certifying that he did not use any government
vehicle, when in fact, he did, in order to receive the transportation allowance.

Pertinent portions of the formal charge read:

1. That despite the regular receipt of Erece of his monthly Representation


and Transportation Allowance (RATA) in the amount of P4,000.00, he still
prioritizes himself in the use of the office vehicle (Tamaraw FX) in spite of the
directive from the Central Office that he cannot use the service vehicle for official
purposes and at the same time receive his transportation allowance;

2. That Erece did not comply with the directive of the Central Office
addressed to all Regional Human Rights Directors, as follows: to regularize your

receipt of the transportation allowance component of the RATA to which you are
entitled monthly, you are hereby directed to immediately transfer to any of your
staff, preferably one of your lawyers, the memorandum receipt of the vehicle(s)
now still in your name;

3. That he certified in his monthly liquidation of his RATA that he did not
use any government vehicle for the corresponding month, which is not true
because he is the regular user of the government vehicle issued to CHR-Region I.

The foregoing facts and circumstances indicate that government service


has been prejudiced by the acts of Erece.

WHEREFORE, Romeo L. Erece is hereby formally charged with


Dishonesty and Grave Misconduct. Accordingly, he is given five (5) days from
receipt hereof to submit his Answer under oath and affidavits of his witnesses, if
any, to the Civil Service Commission-Cordillera Administrative Region (CSCCAR). On his Answer, he should indicate whether he elects a formal investigation
or waives his right thereto. Any Motion to Dismiss, request for clarification or
Bills of Particulars shall not be entertained by the Commission. Any of these
pleadings interposed by the respondent shall be considered as an Answer and shall
be evaluated as such. Likewise, he is advised of his right to the assistance of
counsel of his choice.2[4]

After a formal investigation of the case, the CSC issued Resolution No.
020124, dated January 24. 2002, finding petitioner guilty of dishonesty and
conduct prejudicial to the best interest of the service and penalizing him with
dismissal from the service.

Petitioner filed a petition for review of the CSC Resolution with the CA.

In the Decision promulgated on January 7, 2005, the CA upheld the CSC


Resolution, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the petition is DENIED and


the assailed Resolutions of the Civil Service Commission are hereby
AFFIRMED.

Hence, this petition.

I S S U E:

Petitioner raised the issue of violation of his right to due process because
he was denied the right to cross-examine the respondents on their affidavitcomplaint.

H e l d:

Petitioner contends that he was denied due process as he was not afforded
the right to cross-examine his accusers and their witnesses. He stated that at his
instance, in order to prevent delay in the disposition of the case, he was allowed to
present evidence first to support the allegations in his Counter-Affidavit. After he
rested his case, respondents did not present their evidence, but moved to submit
their position paper and formal offer of evidence, which motion was granted by
the CSC over his (petitioners) objection. Respondents then submitted their
Position Paper and Formal Offer of Exhibits.

Petitioner submits that although he was allowed to present evidence first,


it should not be construed as a waiver of his right to cross-examine the
complainants. Although the order of presentation of evidence was not in
conformity with the procedure, still petitioner should not be deemed to have lost
his right to cross-examine his accusers and their witnesses. This may be allowed
only if he expressly waived said right.

The Court agrees with the CA that petitioner was not denied due process
when he failed to cross-examine the complainants and their witnesses since he

was given the opportunity to be heard and present his evidence. In administrative
proceedings, the essence of due process is simply the opportunity to explain ones
side.

Velez v. De Vera it was held that :

Due process of law in administrative cases is not identical with judicial


process for a trial in court is not always essential to due process. While a day in
court is a matter of right in judicial proceedings, it is otherwise in administrative
proceedings since they rest upon different principles. The due process clause
guarantees no particular form of procedure and its requirements are not technical.
Thus, in certain proceedings of administrative character, the right to a notice or
hearing are not essential to due process of law. The constitutional requirement of
due process is met by a fair hearing before a regularly established administrative
agency or tribunal. It is not essential that hearings be had before the making of a
determination if thereafter, there is available trial and tribunal before which all
objections and defenses to the making of such determination may be raised and
considered. One adequate hearing is all that due process requires. . . .

The right to cross-examine is not an indispensable aspect of due


process. Nor is an actual hearing always essential. . . .

The dismissal of the petitioner from the government is valid.

There is violation of the right to due process of law if a party he is declared as having waived the
right to file his answer despite improper service of summons.
DATUPAX MANGUDADATU VS. HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL (HRET), G.R. No. 179813, December 18, 2008

LEONARDO-DE CASTRO, J.:


Datu Pax Pakung S. Mangudadatu (petitioner) and Angelo O. Montilla (private
respondent) were congressional candidates for the First District of Sultan Kudarat

during the May 14, 2007 national elections. Petitioner won by 17,451 votes and
was proclaimed on May 22, 2007 by the Provincial Board of Canvassers as the
duly elected Representative of the said congressional district. On May 31, 2007,
respondent filed with the HRET a Petition of Protest (Ad Cautelam)3[4] contesting
the results of the elections and the proclamation of petitioner. On June 14, 2007,
the Secretary of the HRET caused the service of summons4[5] upon petitioner
through registered mail at Purok Losaria,5[6] Tamnag (Poblacion), Lutayan,
Sultan Kudarat, requiring petitioner to file an Answer to the protest within ten
(10) days from receipt thereof.

On July 11, 2007, the HRET received the Registry Return Receipt Card,6[7]
showing that a certain Aileen R. Baldenas7[8] (Baldenas) received the summons on
June 27, 2007. On August 16, 2007, the HRET issued Resolution No. 07-1798[9]
which noted the aforementioned Registry Return Receipt Card and that despite
the fact that 43 days from June 27, 2007 had passed since Baldenas received the
summons, petitioner had not filed an answer in accordance with Rule 279[10] of the
2004 HRET Rules. In the same Resolution, the HRET considered petitioner to
have entered a general denial of the allegations of the protest.

In an Order dated August 17, 2007, the HRET set the preliminary conference on
September 27, 2007 at 11:00 a.m.

Meanwhile, petitioner informally learned of respondents protest, prompting


petitioner to request his lawyers to verify the same from the records of the HRET.
Thereafter, his lawyers entered their appearance on September 4, 2007 and
requested that they be furnished with copies of the petition of protest as well as
notices, orders and resolutions pertaining to the protest.

On September 10, 2007, petitioner filed a Motion to Reconsider10[11] Resolution


No. 07-179 and Motion to Admit Answer with Counter-Protest, alleging that he
never received the summons issued by the HRET. In his affidavit11[12] attached to
the motion, petitioner denied that Baldenas was a member of his household or his
employee. He further claimed that she was not authorized to receive any
important documents addressed to him. And assuming that he had authorized her,
the summons received by her was never brought to his attention.

On September 19, 2007, the HRET issued Resolution No. 07-30012[13] denying for
lack of merit.

Hence, this petition.

Petitioner filed the instant petition imputing grave abuse of discretion


amounting to lack of jurisdiction on the part of the HRET for issuing Resolution
Nos. 07-179 and 07-300. He also prayed for a temporary restraining order and/or
a writ of preliminary injunction for this Court to enjoin the HRET from further
proceeding with HRET Case No.07-021. Petitioner contended that the HRET
never acquired jurisdiction over his person because of the absence of a valid
service of summons. He argued that a substitute service of summons is made only
when the defendant cannot be served personally at a reasonable time after efforts
to locate him have failed.13[14] In his case, since the process servers return failed
to show on its face the impossibility of personal service, then the substituted
service was improper and invalid.

In his comment, respondent countered that the HRET did not commit
grave abuse of discretion in issuing Resolution Nos. 07-179 dated August 16,
2007 and 07-300 dated September 19, 2007. He argued that Rule 22 of the 2004
HRET Rules merely states that the Secretary of the Tribunal shall issue the
corresponding summons to the protestee or respondent, as the case may be. He
posited then that the intent of the HRET in not expressly specifying personal
service of summons on the protestee or respondent was to give it a reasonable
discretion or leeway in serving the summons by other means such as registered
mail. Thus, service of summons on petitioner through registered mail did not
violate Rule 22 of the 2004 HRET Rules. Further, respondent claimed that Rule
14, Sections 6 and 7 of the Rules of Court were inconsistent with Rule 22 of the
2004 HRET Rules and therefore should not be given suppletory application to
HRET proceedings.

HELD:

Rule 22 of the 2004 HRET Rules provides:

RULE 22. Summons. If the petition is not summarily dismissed in accordance


with Rule 21 of these Rules, the Secretary of the Tribunal shall issue the
corresponding summons to the protestee or respondent, as the case may be,
together with a copy of the petition, requiring him within ten (10) days from
receipt thereof to file his answer.

The 2004 HRET Rules on summons is silent on how the summons should
be served on the protestee. Significantly, Rule 8014[15] of the 2004 HRET Rules
provides that the 1997 Rules of Civil Procedure applies by analogy or suppletorily
in so far as the latter may be applicable and not inconsistent therewith as well as
with the orders, resolutions and decisions of the HRET. In view of the failure of
the HRET Rules to specify the authorized modes of service of summons, resort
then is necessary to Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure,
which state:

SEC. 6. Service in person on defendant. Whenever practicable, the summons


shall be served handling a copy thereof to the defendant in person, or, if he
refuses to receive and sign for it, by tendering it to him.

SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the preceding section, service may
be effected (a) by leaving copies of the summons at the defendants residence
with some person of suitable age and discretion then residing therein, or (b)
by leaving copies at defendants office or regular place of business with some
competent person in charge thereof.

In the case at bar, the service of the summons was made through registered
mail, which is not among the allowed modes of service under Rule 14 of the
Rules of Court.

Indeed, if in ordinary civil cases (which involve only private and


proprietary interests) personal service of summons is preferred and service by
registered mail is not allowed on jurisdictional and due process grounds, with
more reason should election cases (which involve public interest and the will of
the electorate) strictly follow the hierarchy of modes of service of summons under
the Rules of Court.

The Court sees no reason why the HRET cannot make use of its own
process servers to personally serve the summons, or alternatively, delegate the
matter to the process server of a court with territorial jurisdiction over the place of
residence of the respondent/protestee in the election case, at the expense of the
petitioner/protestant. Considering that the proper service of summons on the
respondent/protestee is a jurisdictional requirement and goes to heart of due
process, we cannot allow service of summons by a method not sanctioned by the
HRET Rules in relation to the Rules of Court.

In view of the foregoing, we find that the HRET committed grave abuse of
discretion in considering petitioner to have entered a general denial of the
allegations in respondents petition of protest and in denying his motion to
reconsider as well as his motion to admit answer with counter-protest.

The right to due process on the part of the respondent was violated when the Civil Service
Commission reconsidered its earlier decision in favor of the former based on a Motion for
Reconsideration wherein said respondent was not furnished a copy thereof nor given the chance
to comment on it.

DEPARTMENT OF EDUCATION VS. GODOFREDO CUANAN, G.R. No.


169013, December 16, 2008

The factual background of the case is as follows:


On March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of their
respective minor daughters, Lily Borja and Charo Castro, filed before the
Department of Education, Culture and Sports - Regional Office No. III (DECSRO No. III), Cabanatuan City, two separate administrative complaints for Sexual
Harassment and Conduct Unbecoming a Public Officer against Cuanan, then
Principal of Lawang Kupang Elementary School in San Antonio, Nueva Ecija.

Acting on the complaints, DECS-RO No. III Regional Director Vilma L. Labrador
constituted an Investigating Committee, composed of three DepEd officials from
the province, to conduct a formal investigation. Following the investigation, the
Investigating Committee submitted its Investigation Report dated December 14,
1999, finding Cuanan guilty of sexual harassment and recommending his forced
resignation without prejudice to benefits. In a Decision dated January 28, 2000,

Regional Director Labrador concurred in the findings of the Investigating


Committee and meted out the penalty of forced resignation to Cuanan without
prejudice to benefits.

In an Order dated April 13, 2000, then DepEd Secretary Andrew Gonzales
affirmed the Decision of Regional Director Labrador. On May 30, 2000, Cuanan
filed a Petition for Reconsideration thereof, but the same was denied for lack of
merit by Secretary Gonzales in a Resolution dated June 19, 2000.

Cuanan elevated his case to the CSC. On January 20, 2003, the CSC issued
Resolution No. 030069 , which set aside the June 19, 2000 Resolution of
Secretary Gonzales and exonerated Cuanan from the charge of sexual harassment.
On January 23, 2003, copies of the resolution were duly sent to the parties,
including the DepEd , Cuanan received a copy of Resolution No. 030069 on
January 31, 2003 .

In a Letter dated February 3, 2003, Cuanan requested his reinstatement as


Elementary School Principal I . In a 1st Indorsement, the District Supervisor
recommended appropriate action. In a 2nd Indorsement dated February 4, 2003,
Schools Division Superintendent Dioscorides D. Lusung (Superintendent)
recommended that Cuanan be reinstated to duty as School Principal of San
Antonio District upon finality of the decision of the CSC . In a Letter dated
February 10, 2003, Regional Director Ricardo T. Sibug informed the
Superintendent that Cuanan could not be immediately reinstated to the service
until an order of implementation was received from the Department Secretary.

Sometime in March 2003, DepEd Undersecretary Jose Luis Martin C. Gascon


sent a letter to the CSC requesting a copy of CSC Resolution No. 030069 dated
January 20, 2003. In a Letter dated March 25, 2003, the CSC informed the DepEd
that a copy of the requested resolution was duly sent to it on January 23, 2003.
Nonetheless, the CSC sent another copy of the resolution to the DepEd for its
reference. The DepEd received said reference copy on March 28, 2003.

On April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed a Petition for
Review/Reconsideration with the CSC. No copy of the pleading was served upon
Cuanan.

On July 29, 2003, Secretary De Jesus filed a Supplemental Petition for


Review/Reconsideration reiterating the prayer for reversal of the resolution.
Again, no copy of the pleading was served upon Cuanan.

Subsequently, pursuant to Division Special Order No. 001 series of 2003 dated
June 18, 2003, Cuanan was reinstated to his former position as school principal
effective April 30, 2003 In Division Special Order No. 285, series of 2003 dated
July 8, 2003, Cuanan was directed to return to duty . Based thereon, Cuanan
requested payment of salaries and his inclusion in the payroll, which the Division
School Superintendent of Nueva Ecija duly endorsed on November 7, 2003 .

However, on October 22, 2004, the CSC issued Resolution No. 041147 setting
aside CSC Resolution No. 030069 dated January 20, 2003. It found Cuanan guilty
of Sexual Harassment, Grave Misconduct and Conduct Grossly Prejudicial to the
Best Interest of the Service and meted out the penalty of dismissal from the
service with forfeiture of retirement benefits, cancellation of his service eligibility,
and perpetual disqualification from holding public office. Cuanan received a copy
of the Resolution on November 9, 2004 .

Thirteen days later, or on November 22, 2004, Cuanan filed a petition for
certiorari with the CA seeking to annul Resolution No. 041147, alleging that the
CSC should not have entertained the petition for review/reconsideration since the
DepEd was not the complainant or the party adversely affected by the resolution;
that the petition for review/reconsideration was filed out of time; and that Cuanan
was not furnished copies of the pleadings filed by the DepEd in violation of
procedural due process.

The DepEd sought the dismissal of the petition on the ground of improper
remedy, the mode of review from a decision of the CSC being a petition for
review under Rule 43 of the Rules of Court.

On May 16, 2005, the CA rendered a Decision granting the petition for certiorari
and setting aside CSC Resolution No. 041147 dated October 12, 2004. The CA
held that while a motion for reconsideration and a petition for review under Rule

43 were available remedies, Cuanan's recourse to a petition for certiorari was


warranted, since the act complained of was patently illegal; that the CSC gravely
abused its discretion in granting the petition for review/reconsideration filed by
the DepEd without regard for Cuanan's fundamental right to due process, since he
was not duly notified of the petition for review/reconsideration, nor was he
required by the CSC to file a comment thereon, much less, given a copy of the
said petition; that the DepEd failed to establish that the resolution was not yet
final and executory when it filed its petition for review/reconsideration.

DepEd filed a Motion for Reconsideration but the CA denied the same in its
Resolution dated July 18, 2005.

Hence, the present petition on the following grounds:

WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A


QUESTION OF LAW IN TAKING COGNIZANCE OF THE PETITION IN CAG.R. SP NO. 87499, THE SAME NOT BEING THE PROPER REMEDY IN
ASSAILING CSC RESOLUTION NO. 041147 DATED OCTOBER 22, 2004.

II

WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A


QUESTION OF LAW IN ADJUDGING CSC AS HAVING COMMITTED
GRAVE ABUSE OF DISCRETION IN ISSUING RESOLUTION NO. 041147
DATED OCTOBER 22, 2004 .

DepEd contends that the CA should have dismissed outright the petition for
certiorari because CSC decisions are appealable to the CA by petition for review
under Rule 43; that the filing of a motion for reconsideration was a precondition
to the filing of a petition for certiorari under Rule 65; that the DepEd, even if not

the complainant, may question the resolution of the CSC; that Cuanan failed to
prove that the CSC's petition for review/reconsideration was not seasonably filed;
that even if Cuanan was not served a copy of the pleadings filed by the DepEd,
the CSC was not bound by procedural rules.

Cuanan, on the other hand, contends that the DepEd cannot file a motion for
reconsideration from the CSC Resolution exonerating him, since it is not the
complainant in the administrative case and therefore not a party adversely affected
by the decision therein; that even if DepEd may seek reconsideration of the CSC
Resolution, the petition for review/reconsideration was filed out of time; and that
Cuanans right to due process was violated when he was not given a copy of the
pleadings filed by the DepEd or given the opportunity to comment thereon.

The Court finds it necessary, before delving on the grounds relied upon by the
DepEd in support of the petition, to first resolve the question of whether the
DepEd can seek reconsideration of the CSC Resolution exonerating Cuanan.

In a long line of cases, beginning with Civil Service Commission v. Dacoycoy ,


and reiterated in Philippine National Bank v. Garcia, Jr ., the Court has
maintained that the disciplining authority qualifies as a party adversely affected
by the judgment, who can file an appeal of a judgment of exoneration in an
administrative case. CSC Resolution No. 021600 allows the disciplining authority
to appeal from a decision exonerating an erring employee, thus:

Section 2. Coverage and Definition of Terms. x x x (l) PARTY ADVERSELY


AFFECTED refers to the respondent against whom a decision in a disciplinary
case has been rendered or to the disciplining authority in an appeal from a
decision exonerating the said employee. (Emphasis supplied)

Hence, Cuanan's exoneration under CSC Resolution No. 030069 may be subject
to a motion for reconsideration by the DepEd which, as the appointing and
disciplining authority, is a real party in interest.

Now, as to the merits of DepEd's arguments, the Court finds none.

The remedy of an aggrieved party from a resolution issued by the CSC is to file a
petition for review thereof under Rule 43 of the Rules of Court within fifteen days
from notice of the resolution. Recourse to a petition for certiorari under Rule 65
renders the petition dismissible for being the wrong remedy. Nonetheless, there
are exceptions to this rule, to wit: (a) when public welfare and the advancement of
public policy dictates; (b) when the broader interest of justice so requires; (c)
when the writs issued are null and void; or (d) when the questioned order
amounts to an oppressive exercise of judicial authority . As will be shown
forthwith, exception (c) applies to the present case.

Furthermore, while a motion for reconsideration is a condition precedent to the


filing of a petition for certiorari, immediate recourse to the extraordinary remedy
of certiorari is warranted where the order is a patent nullity, as where the court a
quo has no jurisdiction; where petitioner was deprived of due process and there is
extreme urgency for relief; where the proceedings in the lower court are a nullity
for lack of due process; where the proceeding was ex parte or one in which the
petitioner had no opportunity to object . These exceptions find application to
Cuanan's petition for certiorari in the CA.

At any rate, Cuanan's petition for certiorari before the CA could be treated as a
petition for review, the petition having been filed on November 22, 2004, or
thirteen (13) days from receipt on November 9, 2004 of CSC Resolution No.
041147, clearly within the 15-day reglementary period for the filing of a petition
for review . Such move would be in accordance with the liberal spirit pervading
the Rules of Court and in the interest of substantial justice .
Furthermore, CSC Resolution No. 030069 has long become final and executory. It
must be noted that the records show that copies of CSC Resolution No. 030069
were duly sent to the parties, including DepEd, on January 23, 2003 . Cuanan
received a copy thereof on January 31, 2003 while the DepEd requested a copy
sometime in March 2003, or about two months later. Under the Rules of
Evidence, it is presumed that official duty has been regularly performed, unless
contradicted . This presumption includes that of regularity of service of
judgments, final orders or resolutions.

Consequently, the burden of proving the irregularity in official conduct -- that is,
non-receipt of the duly sent copy of CSC Resolution No. 030069 -- is on the part
of the DepEd, which in the present case clearly failed to discharge the same .

Thus, the presumption stands that CSC Resolution No. 030069 dated January 20,
2003 had already become final and executory when the DepEd filed its Petition
for Review/Reconsideration on April 11, 2003, more than two months later.

It is elementary that once judgment has become final and executory, it becomes
immutable and can no longer be amended or modified. In Gallardo-Corro v.
Gallardo , this Court held:

Nothing is more settled in law than that once a judgment attains finality it
thereby becomes immutable and unalterable. It may no longer be modified in any
respect, even if the modification is meant to correct what is perceived to be an
erroneous conclusion of fact or law, and regardless of whether the modification is
attempted to be made by the court rendering it or by the highest court of the land.
Just as the losing party has the right to file an appeal within the prescribed period,
the winning party also has the correlative right to enjoy the finality of the
resolution of his case. The doctrine of finality of judgment is grounded on
fundamental considerations of public policy and sound practice, and that, at the
risk of occasional errors, the judgments or orders of courts must become final at
some definite time fixed by law; otherwise, there would be no end to litigations,
thus setting to naught the main role of courts of justice which is to assist in the
enforcement of the rule of law and the maintenance of peace and order by settling
justiciable controversies with finality .

Moreover, while it is true that administrative tribunals exercising quasi-judicial


functions are free from the rigidity of certain procedural requirements, they are
bound by law and practice to observe the fundamental and essential requirements
of due process in justiciable cases presented before them . The relative freedom
of the CSC from the rigidities of procedure cannot be invoked to evade what
was clearly emphasized in the landmark case of Ang Tibay v. Court of
Industrial Relations that all administrative bodies cannot ignore or disregard
the fundamental and essential requirements of due process.

Furthermore, Section 43.A of the Uniform Rules in Administrative Cases in the


Civil Service provides:

Section 43.A. Filing of Supplemental Pleadings. - All pleadings filed by the


parties with the Commission, shall be copy furnished the other party with
proof of service filed with the Commission.

Any supplemental pleading to supply deficiencies in aid of an original pleading


but which should not entirely substitute the latter can be filed only upon a
favorable action by the Commission on the motion of a party to the case. The said
motion should be submitted within five (5) days from receipt of a copy of the
original pleading and it is discretionary upon the Commission to allow the same
or not or even to consider the averments therein.(Emphasis supplied)
Cuanan undoubtedly was denied procedural due process. He had no opportunity
to participate in the proceedings for the petition for review/ reconsideration filed
by the DepEd, since no copy of the pleadings filed by the DepEd were served
upon him or his counsel; nor was he even required by the CSC to file his
comments thereon. Considering that pleadings filed by the DepEd were not served
upon Cuanan, they may be treated as mere scraps of paper which should not have
merited the attention or consideration of the CSC.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution


of the Court of Appeals in CA-G.R. SP No. 87499 are AFFIRMED.

There is no violation of the petitioners right to due process when after the election protest
against him was already submitted for decision and the ballots transferred to the Senate
Electoral Tribunal, the COMELEC went to deliberate on the case at the Senate Electoral
Tribunal using the ballots therein in the process without notice to the petitioner.

JOSELITO MENDOZA VS. COMELEC and ROBERTO


PAGDANGANAN, G.R. No. 188308, October 15, 2009

BRION, J.:

The petitioner and the respondent vied for the position of Governor of the
Province of Bulacan in the May 14, 2007 elections. The petitioner was proclaimed
winning candidate and assumed the office of Governor.

The respondent seasonably filed an election protest with the COMELEC, which
was raffled to the Second Division and docketed as EPC No. 2007-44. Revision of ballots
involving the protested and counter-protested precincts in Angat, Bocaue, Calumpit,
Doa Remedios Trinidad, Guiginto, Malolos, Meycauayan, Norzagaray, Pandi,
Paombong, Plaridel, Pulilan, San Rafael and San Jose del Monte soon followed. The
revision was conducted at the COMELECs office in Intramuros. After revision, the
parties presented their other evidence, leading to the parties formal offer of their
respective evidence.

The COMELEC approved the parties formal offer of evidence and then required
the parties to submit their respective memoranda. The parties complied with the
COMELECs order. The case was thereafter submitted for resolution.

On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including
those involved in the provincial election contest, to the Senate Electoral Tribunal (SET) in
connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. In
light of this development, the petitioner moved to suspend further proceedings. .

The COMELECs Second Division denied the petitioners motion in its Order of April
29, 2009, ruling that the COMELEC has plenary powers to find alternative methods to
facilitate the resolution of the election protest; thus, it concluded that it would continue
the proceedings after proper coordination with the SET. The petitioner moved to
reconsider this Order, but the COMELECs Second Division denied the motion in its
Order of May 26, 2009. These inter-related Resolutions led to the COMELECs
continued action specifically, the appreciation of ballots on the provincial election
contest at the SET offices---which the COMELEC did without informing the petitioner.

Allegedly alarmed by information on COMELEC action on the provincial


election contest within the SET premises without notice to him and without his
participation, the petitioners counsel wrote the SET Secretary, Atty. Irene Guevarra, a
letter dated June 10, 2009 to confirm the veracity of the reported conduct of
proceedings.15[2] The SET Secretary responded on June 17, 2009 as follows:

x x x please be informed that the conduct of proceedings in


COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the
Tribunal Premises was authorized by then Acting Chairman of the
Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of
Commissioner Lucenito N. Tagle.

Basis of such grant is Section 3, Comelec Resolution No. 2812


dated 17 October 1995, stating that (t)he Tribunals, the Commission and
the Courts shall coordinate and make arrangement with each other so as
not to delay or interrupt the revision of ballots being conducted. The
synchronization of revision of ballots shall be such that the expeditious
disposition of the respective protest case shall be the primary concern.
While the said provision speaks only of revision, it has been the practice
of the Tribunal to allow the conduct of other proceedings in local election
protest cases within its premises as may be requested. [emphasis
supplied]16[3]

ISSUE:

WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY


CONDUCTING PROCEEDINGS WITHOUT GIVING DUE NOTICE TO
THE PETITIONER.

The petitioner argues that the election protest involves his election as Governor;
thus, its subject matter involves him and the people of the Province of Bulacan who
elected him. On this basis, he claims entitlement to notice and participation in all matters
that involve or are related to the election protest. He further asserts that he had the
legitimate expectation that no further proceedings would be held or conducted in the case
after its submission for decision.

Citing the commentaries of Father Joaquin Bernas,17[4] the petitioner argues that
the proceedings before the COMELEC in election protests are judicial in nature and
character. Thus, the strictures of judicial due process specifically, (a) opportunity to be
heard and (b) that judgment be rendered only after lawful hearing apply. Notices in

judicial dispute, he claims, are not really just a matter of courtesy; they are elementary
fundamental element of due process, they are part and parcel of a right of a party to be
heard. He further cites Justice Isagani A. Cruz,18[5] who wrote:

x x x Every litigant is entitled to his day in court. He has a right to


be notified of every incident of the proceeding and to be present at every
stage thereof so that he may be heard by himself and counsel for the
protection of his interest.

The petitioner claims that without notice to him of the proceedings, the due
process element of the right to have judgment only after lawful hearing is absent. There is
no way, he claims, that a judicial proceeding held without notice to the parties could be
described as a lawful hearing, especially a proceeding which has as its subject matter the
sovereign will of an entire province.

He was therefore denied his day in court, he claims, when the COMELEC conducted the
examination and appreciation of ballots. The proceedings should be stopped and declared
null and void; its future results, too, should be nullified, as nothing derived from the
anomalous and unconstitutional clandestine and unilateral proceedings should ever be
part of any decision that the COMELEC may subsequently render. The poisonous fruits
(derived from the proceedings) should have no part and should not be admitted for any
purpose and/or in any judicial proceeding.

HELD:

The petition is anchored on the alleged conduct of proceedings in the election protest
following the completed revision of ballots at the SET premises without notice to and
without the participation of the petitioner. Significantly, the conduct of proceedings is
confirmed by the SET Secretary in the letter we quoted above.19[8] As the issues raised
show the petitioners focus is not really on the COMELEC Orders denying the
suspension of proceedings when the ballot boxes and other election materials pertinent to
the election contest were transferred to the SET; the focus is on what the COMELEC did
after to the issuance of the Resolutions. We read the petition in this context as these
COMELEC Orders are now unassailable as the period to challenge them has long
passed.20[9]

The substantive issue we are primarily called upon to resolve is whether there
were proceedings within the SET premises, entitling the petitioner to notice and
participation, which were denied to him; in other words, the issue is whether the
petitioners right to due process has been violated. A finding of due process violation,
because of the inherent arbitrariness it carries, necessarily amounts to grave abuse of
discretion.

As a preliminary matter, we note that the petitioner has claimed that COMELEC
exercises judicial power in its action over provincial election contests and has argued its
due process position from this view. We take this opportunity to clarify that judicial
power in our country is vested in one Supreme Court and in such lower courts as may
be established by law.21[10] This exclusive grant of authority to the Judiciary is reinforced
under the second paragraph of Section 1, Article VIII of the Constitution which further
states that Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable.. ., thus
constitutionally locating the situs of the exercise of judicial power in the courts.

In contrast with the above definitions, Section 2, Article IX(C) of the Constitution
lists the COMELECs powers and functions, among others, as follows:
(1) Enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests


relating to the elections, returns and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all contests
involving elective municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials by trial courts of
limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election


contests involving elective municipal and barangay officials shall be final,
executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and location of
polling places, appointment of election officials and inspectors, and
registration of voters.
Under these terms, the COMELEC under our governmental structure is a
constitutional administrative agency and its powers are essentially executive in nature
(i.e., to enforce and administer election laws),22[11] quasi-judicial (to exercise original
jurisdiction over election contests of regional, provincial and city officials and appellate
jurisdiction over election contests of other lower ranking officials), and quasi-legislative
(rulemaking on all questions affecting elections and the promulgation of its rules of
procedure).

The COMELECs adjudicative function is quasi-judicial since it is a constitutional


body, other than a court, vested with authority to decide election contests, and in the
course of the exercise of its jurisdiction, to hold hearings and exercise discretion of a
judicial nature;23[12] it receives evidence, ascertain the facts from these submissions,
determine the law and the legal rights of the parties, and on the basis of all these decides
on the merits of the case and renders judgment.24[13] Despite the exercise of discretion that
is essentially judicial in character, particularly with respect to election contests,
COMELEC is not a tribunal within the judicial branch of government and is not a court
exercising judicial power in the constitutional sense;25[14] hence, its adjudicative function,
exercised as it is in the course of administration and enforcement, is quasi-judicial.

The appropriate due process standards that apply to the COMELEC, as an


administrative or quasi-judicial tribunal, are those outlined in the seminal case of Ang
Tibay v. Court of Industrial Relations,26[16] quoted below:

(1) The first of these rights is the right to a hearing, which includes
the right of the party interested or affected to present his own case and
submit evidence in support thereof. xxx

(2) Not only must the party be given an opportunity to present his
case and to adduce evidence tending to establish the rights which he
asserts but the tribunal must consider the evidence presented.

(3) While the duty to deliberate does not impose the obligation to
decide right, it does imply a necessity which cannot be disregarded,
namely, that of having something to support its decision. A decision with
absolutely nothing to support it is a nullity, a place when directly attached.

(4) Not only must there be some evidence to support a finding or


conclusion, but the evidence must be "substantial. "Substantial evidence
is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."

(5) The decision must be rendered on the evidence presented at the


hearing, or at least contained in the record and disclosed to the parties
affected.

(6) The Court of Industrial Relations or any of its judges, therefore,


must act on its or his own independent consideration of the law and facts
of the controversy, and not simply accept the views of a subordinate in
arriving at a decision.

(7) The Court of Industrial Relations should, in all controversial


questions, render its decision in such a manner that the parties to the
proceeding can know the various issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the
authority conferred upon it.

These are now commonly referred to as cardinal primary rights in


administrative proceedings.

The first of the enumerated rights pertain to the substantive rights of a party at
hearing stage of the proceedings. The essence of this aspect of due process, we have
consistently held, is simply the opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain ones side or an opportunity to seek a
reconsideration of the action or ruling complained of.27[17] A formal or trial-type hearing is
not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its

Rules of Procedure defines the requirements for a hearing and these serve as the
standards in the determination of the presence or denial of due process.

The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are
reinforcements of the right to a hearing and are the inviolable rights applicable at the
deliberative stage, as the decision-maker decides on the evidence presented during the
hearing. These standards set forth the guiding considerations in deliberating on the case
and are the material and substantial components of decision-making. Briefly, the tribunal
must consider the totality of the evidence presented which must all be found in the
records of the case (i.e., those presented or submitted by the parties); the conclusion,
reached by the decision-maker himself and not by a subordinate, must be based on
substantial evidence.28[18]

Finally, the last requirement, relating to the form and substance of the decision of a quasijudicial body, further complements the hearing and decision-making due process rights
and is similar in substance to the constitutional requirement that a decision of a court
must state distinctly the facts and the law upon which it is based.29[19] As a component of
the rule of fairness that underlies due process, this is the duty to give reason to enable
the affected person to understand how the rule of fairness has been administered in his
case, to expose the reason to public scrutiny and criticism, and to ensure that the decision
will be thought through by the decision-maker.

In the present case, the petitioner invokes both the due process component rights
at the hearing and deliberative stages and alleges that these component rights have all
been violated. We discuss all these allegations below.

The Right to Notice and to be Heard.

At the Hearing and Revision of Ballots.

Based on the pleadings filed, we see no factual and legal basis for the petitioner to
complain of denial of his hearing stage rights. In the first place, he does not dispute that
he fully participated in the proceedings of the election protest until the case was deemed
submitted for resolution; he had representation at the revision of the ballots, duly

presented his evidence, and summed up his case through a memorandum. These various
phases of the proceedings constitute the hearing proper of the election contest and the
COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay
hearing stage rights require. In these proceedings, the petitioner stood head-to-head with
the respondent in an adversarial contest where both sides were given their respective
rights to speak, make their presentations, and controvert each others submission, subject
only to established COMELEC rules of procedures. Under these undisputed facts, both
parties had their day in court, so to speak, and neither one can complain of any denial of
notice or of the right to be heard.

b. At the Proceedings at the SET.

A critical question to be answered in passing upon due process questions at this


stage of the election contest is the nature of the so-called proceedings after the ballots
and other materials pertinent to the provincial election contest were transferred to the
SET.

In the petition, the petitioner alleged that there were strange proceedings30[20]
which were unilateral, clandestine and surreptitious within the premises of the SET, on
documents, ballots and election materials whose possession and custody have been
transferred to the SET, and the petitioner was NEVER OFFICIALLY NOTIFIED of the
strange on-goings at the SET.31[21] Attached to the petition was the letter of the Secretary
of the SET confirming the conduct of proceedings in the provincial election contest,
and citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio,
upon the formal request of the Office of Commissioner Lucenito N. Tagle, and citing
Section 3, COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination
envisioned among the COMELEC, the SET and the courts so as not to delay or interrupt
the revision of ballots being conducted. While the SET letter made the reservation that
While the said provision speaks only of revision, it has been the practice of the Tribunal
to allow the conduct of other proceedings in local election protest cases within its
premises as may be requested, no mention whatsoever was made of the kind of
proceedings taking place.

It was at this point that this Court intervened, in response to the petitioners prayer
for the issuance of temporary injunctive relief, through the issuance of a Status Quo
Order with a non-extendible directive for the respondents to file their comments on the
petition; for indeed, any further revision of ballots or other adversarial proceedings after

the case has been submitted for resolution, would not only be strange and unusual but
would indicate a gross violation of due process rights.

After consideration of the respondents Comments and the petitioners petition


and Reply, we hold that the contested proceedings at the SET (contested proceedings)
are no longer part of the adversarial aspects of the election contest that would require
notice of hearing and the participation of the parties. As the COMELEC stated in its
Comment and without any contrary or disputing claim in the petitioners Reply:32[22]

However, contrary to the claim of petitioner, public respondent in the


appreciation of the contested ballots in EPC No. 2007-44 simultaneously
with the SET in SET Case No. 001-07 is not conducting further
proceedings requiring notice to the parties. There is no revision or
correction of the ballots because EPC No. 2007-04 was already submitted
for resolution. Public respondent, in coordinating with the SET, is simply
resolving the submitted protest case before it. The parties necessarily take
no part in said deliberation, which require utmost secrecy. Needless to
state, the actual decision-making process is supposed to be conducted only
by the designated members of the Second Division of the public
respondent in strict confidentiality.

In other words, what took place at the SET were the internal deliberations of the
COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented
and deciding the provincial election contest on the merits. These deliberations are no
different from judicial deliberations which are considered confidential and privileged.33[23]
We find it significant that the private respondents Comment fully supported the
COMELECs position and disavowed any participation in the contested proceeding the
petitioner complained about. The petitioner, on the other hand, has not shown that the
private respondent was ever present in any proceeding at the SET relating to the
provincial election contest.

To conclude, the rights to notice and to be heard are not material considerations in
the COMELECs handling of the Bulacan provincial election contest after the transfer of
the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC
has been conducted at the SET that would require notice and hearing because of the
possibility of prejudice to the other party. The COMELEC is under no legal obligation to
notify either party of the steps it is taking in the course of deliberating on the merits of the
provincial election contest. In the context of our standard of review for the petition, we

see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by


the COMELEC in its deliberation on the Bulacan election contest and the appreciation of
ballots this deliberation entailed.

Alleged Violations of
Deliberation Stage Rights.

On the basis of the above conclusion, we see no point in discussing any alleged
violation of the deliberative stage rights. First, no illegal proceeding ever took place that
would bear the poisonous fruits that the petitioner fears. Secondly, in the absence of the
results of the COMELEC deliberations through its decision on the election protest, no
basis exists to apply the Ang Tibay deliberative stage rights; there is nothing for us to test
under the standards of the due process deliberative stages rights before the COMELEC
renders its decision. Expressed in terms of our standard of review, we have as yet no basis
to determine the existence of any grave abuse of discretion.

Conduct of COMELEC
Deliberations at the SET Premises

We turn to the issue of the propriety of the COMELECs consideration of the


provincial election contest (specifically its appreciation of the contested ballots) at the
SET premises and while the same ballots are also under consideration by the SET for
another election contest legitimately within the SETs own jurisdiction.

We state at the outset that the COMELEC did not lose jurisdiction over the
provincial election contest, as the petitioner seems to imply, because of the transmittal of
the provincial ballot boxes and other election materials to the SET. The Constitution
conferred upon the COMELEC jurisdiction over election protests involving provincial
officials. The COMELEC in this case has lawfully acquired jurisdiction over the subject
matter, i.e., the provincial election contest, as well as over the parties. After its
jurisdiction attached, this jurisdiction cannot be ousted by subsequent events such as the
temporary transfer of evidence and material records of the proceedings to another tribunal
exercising its own jurisdiction over another election contest pursuant to the Constitution.
This is the rule of adherence of jurisdiction.34[24]

Thus, the jurisdiction of the COMELEC over provincial election contest exists
side by side with the jurisdiction of the Senate Electoral Tribunal, with each tribunal
being supreme in their respective areas of concern (the Senate election contests for the
SET, and the regional, provincial and city election contests for the COMELEC), and with
neither one being higher than the other in terms of precedence so that the jurisdiction of
one must yield to the other.

But while no precedence in jurisdiction exists, the COMELEC, vowing to the


reality that only a single ballot exists in an election for national and local officials, saw it
fit to lay down the rule on the order of preference in the custody and revision of ballots
and other documents contained in the ballot boxes. The order, in terms of the
adjudicatory tribunal and as provided in COMELEC Resolution No. 2812, runs:

Presidential Electoral Tribunal;

Senate Electoral Tribunal;

House of Representatives Electoral Tribunal;

Commission on Elections; and

Regional Trial Courts.

This order of preference dictated that the ballot boxes and other election materials in
Bulacans provincial election contest, had to be transferred to the SET when the latter
needed these materials for its revision of ballots. The transfer to the SET, however, did
not mean that the Bulacan provincial election contest at that time already submitted for
decision had to be suspended as the COMELEC held in its Orders of 29 April 2009 and
26 May 2009 in EPC No. 2007-44.35[25] This is particularly true in Bulacans case as no
revision had to be undertaken, the revision having been already terminated.

WHEREFORE, premises considered, we DISMISS the petition for certiorari for


lack of merit. We accordingly LIFT the STATUS QUO ORDER we issued, effective
immediately.

CHAPTER III - THE EQUAL


PROTECTION CLAUSE

Sec. 1nor shall any person be denied the equal


protection of the laws.

The laws considering appointed officials of the government who filed their certificates of
candidacy considered resigned while elected officials are not does not violate the equal
protection clause of the Constitution.
ELEAZAR P. QUINTO and GERINO TOLENTINO, JR. VS.
COMELEC, G.R. No. 189698, February 22, 2010 (Reversing
the December 1, 2009 En Banc Decision)
Puno, CJ
The main issue in this case is whether or not the second proviso in the third
paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election
Code and Section 4(a) of COMELEC Resolution No. 8678, providing that appointive
officials are deemed automatically resigned from their jobs upon the filing of their
certificates of candidacy (while the elected officials are not) is unconstitutional mainly on
the ground that they violate the equal protection clause of the Constitution and suffer
from overbreadth.
On December 1, 2009, the Supreme Court held that the questioned provisions of
the above-mentioned laws are unconstitutional for being violative of the equal protection
clause.
On Motion for Reconsideration, the Supreme Court reconsidered its earlier
Decision and declared the above laws and COMELEC Resolution constitutional.
In support of their respective motions for reconsideration, respondent COMELEC
and movants-intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional
proscription against the participation of public appointive officials and
members of the military in partisan political activity;

(2) The assailed provisions do not violate the equal protection clause when they
accord differential treatment to elective and appointive officials, because such
differential treatment rests on material and substantial distinctions and is
germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety
and interest demand such reversal.
We find the foregoing arguments meritorious.
The assailed December 1, 2009 Decision struck down Section 4(a) of Resolution
8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369,
and Section 66 of the Omnibus Election Code, on the following grounds:
(1) They violate the equal protection clause of the Constitution because of the
differential treatment of persons holding appointive offices and those holding
elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants
holding appointive posts: (a) without distinction as to whether or not they
occupy high/influential positions in the government, and (b) they limit these
civil servants activity regardless of whether they be partisan or nonpartisan in
character, or whether they be in the national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental
right of these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of
Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the
third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly
reverse our December 1, 2009 Decision.
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus
Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369
are not violative of the equal protection clause of the Constitution.
i.

Farias, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned
provisions challenged in the case at bar violate the equal protection clause of the
Constitution in Farias, et al. v. Executive Secretary, et al.
In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation
to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among
others, that it unduly discriminates against appointive officials. As Section 14 repealed

Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the


Omnibus Election Code, elected officials are no longer considered ipso facto resigned
from their respective offices upon their filing of certificates of candidacy. In contrast,
since Section 66 was not repealed, the limitation on appointive officials continues to be
operative they are deemed resigned when they file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge against
Section 14, with the end in view of having the deemed-resigned provisions apply
equally to both elected and appointive officials. We held, however, that the legal
dichotomy created by the Legislature is a reasonable classification, as there are material
and significant distinctions between the two classes of officials. Consequently, the
contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, infringed on the equal protection clause of the Constitution,
failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the
Omnibus Election Code pertaining to elective officials gives undue benefit
to such officials as against the appointive ones and violates the equal
protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not


absolute, but is subject to reasonable classification. If the groupings are
characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from the other. The Court
has explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue


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

Substantial distinctions clearly exist between elective officials


and appointive officials. The former occupy their office by virtue of
the mandate of the electorate. They are elected to an office for a
definite term and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the
appointing authority.

Another substantial distinction between the two sets of officials is


that under Section 55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of 1987 (Executive
Order No. 292), appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any partisan political
activity or take (sic) part in any election except to vote. Under the same
provision, elective officials, or officers or employees holding political
offices, are obviously expressly allowed to take part in political and
electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus


Election Code, the legislators deemed it proper to treat these two classes
of officials differently with respect to the effect on their tenure in the
office of the filing of the certificates of candidacy for any position other
than those occupied by them. Again, it is not within the power of the Court
to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006,


i.e., elected officials vis--vis appointive officials, is anchored upon
material and significant distinctions and all the persons belonging under
the same classification are similarly treated, the equal protection clause of
the Constitution is, thus, not infringed.
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our
assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis
et non quieta movere. This doctrine, which is really adherence to precedents, mandates
that once a case has been decided one way, then another case involving exactly the same
point at issue should be decided in the same manner. This doctrine is one of policy
grounded on the necessity for securing certainty and stability of judicial decisions. As the

renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial
Process:
It will not do to decide the same question one way between one set of
litigants and the opposite way between another. If a group of cases
involves the same point, the parties expect the same decision. It would be
a gross injustice to decide alternate cases on opposite principles. If a case
was decided against me yesterday when I was a defendant, I shall look for
the same judgment today if I am plaintiff. To decide differently would
raise a feeling of resentment and wrong in my breast; it would be an
infringement, material and moral, of my rights." Adherence to precedent
must then be the rule rather than the exception if litigants are to have faith
in the even-handed administration of justice in the courts.
Our Farias ruling on the equal protection implications of the deemed-resigned
provisions cannot be minimalized as mere obiter dictum. It is trite to state that an
adjudication on any point within the issues presented by the case cannot be considered as
obiter dictum. This rule applies to all pertinent questions that are presented and resolved
in the regular course of the consideration of the case and lead up to the final conclusion,
and to any statement as to the matter on which the decision is predicated. For that reason,
a point expressly decided does not lose its value as a precedent because the disposition of
the case is, or might have been, made on some other ground; or even though, by reason of
other points in the case, the result reached might have been the same if the court had held,
on the particular point, otherwise than it did. As we held in Villanueva, Jr. v. Court of
Appeals, et al.:

A decision which the case could have turned on is not regarded as


obiter dictum merely because, owing to the disposal of the contention, it
was necessary to consider another question, nor can an additional reason
in a decision, brought forward after the case has been disposed of on one
ground, be regarded as dicta. So, also, where a case presents two (2) or
more points, any one of which is sufficient to determine the ultimate issue,
but the court actually decides all such points, the case as an authoritative
precedent as to every point decided, and none of such points can be
regarded as having the status of a dictum, and one point should not be
denied authority merely because another point was more dwelt on and
more fully argued and considered, nor does a decision on one proposition
make statements of the court regarding other propositions dicta. (italics
supplied)
ii.

Classification Germane to the Purposes of the Law

The Farias ruling on the equal protection challenge stands on solid ground even
if reexamined.

To start with, the equal protection clause does not require the universal application
of the laws to all persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. The test developed by
jurisprudence here and yonder is that of reasonableness, which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
Our assailed Decision readily acknowledged that these deemed-resigned
provisions satisfy the first, third and fourth requisites of reasonableness. It, however,
proffers the dubious conclusion that the differential treatment of appointive officials vis-vis elected officials is not germane to the purpose of the law, because whether one
holds an appointive office or an elective one, the evils sought to be prevented by the
measure remain, viz.:
For example, the Executive Secretary, or any Member of the Cabinet
for that matter, could wield the same influence as the Vice-President who
at the same time is appointed to a Cabinet post (in the recent past, elected
Vice-Presidents were appointed to take charge of national housing, social
welfare development, interior and local government, and foreign affairs).
With the fact that they both head executive offices, there is no valid
justification to treat them differently when both file their [Certificates of
Candidacy] for the elections. Under the present state of our law, the VicePresident, in the example, running this time, let us say, for President,
retains his position during the entire election period and can still use the
resources of his office to support his campaign.
Sad to state, this conclusion conveniently ignores the long-standing rule that to
remedy an injustice, the Legislature need not address every manifestation of the evil at
once; it may proceed one step at a time. In addressing a societal concern, it must
invariably draw lines and make choices, thereby creating some inequity as to those
included or excluded. Nevertheless, as long as the bounds of reasonable choice are not
exceeded, the courts must defer to the legislative judgment. We may not strike down a
law merely because the legislative aim would have been more fully achieved by
expanding the class. Stated differently, the fact that a legislative classification, by itself, is
under inclusive will not render it unconstitutionally arbitrary or invidious. There is no
constitutional requirement that regulation must reach each and every class to which it
might be applied; that the Legislature must be held rigidly to the choice of regulating all
or none.

Thus, any person who poses an equal protection challenge must convincingly
show that the law creates a classification that is palpably arbitrary or capricious. He
must refute all possible rational bases for the differing treatment, whether or not the
Legislature cited those bases as reasons for the enactment, such that the constitutionality
of the law must be sustained even if the reasonableness of the classification is fairly
debatable. In the case at bar, the petitioners failed and in fact did not even attempt to
discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this
point even while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may find
that the statutes distinction is unfair, underinclusive, unwise, or not the
best solution from a public-policy standpoint; rather, we must find that
there is no reasonably rational reason for the differing treatment.

In the instant case, is there a rational justification for excluding


elected officials from the operation of the deemed resigned provisions? I
submit that there is.

An election is the embodiment of the popular will, perhaps the


purest expression of the sovereign power of the people. It involves the
choice or selection of candidates to public office by popular vote.
Considering that elected officials are put in office by their constituents for
a definite term, it may justifiably be said that they were excluded from
the ambit of the deemed resigned provisions in utmost respect for the
mandate of the sovereign will. In other words, complete deference is
accorded to the will of the electorate that they be served by such officials
until the end of the term for which they were elected. In contrast, there is
no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials


is therefore germane to the purposes of the law. For the law was made
not merely to preserve the integrity, efficiency, and discipline of the
public service; the Legislature, whose wisdom is outside the rubric of
judicial scrutiny, also thought it wise to balance this with the
competing, yet equally compelling, interest of deferring to the
sovereign will. (emphasis in the original)
In fine, the assailed Decision would have us equalize the playing field by
invalidating provisions of law that seek to restrain the evils from running riot. Under the
pretext of equal protection, it would favor a situation in which the evils are unconfined

and vagrant, existing at the behest of both appointive and elected officials, over another
in which a significant portion thereof is contained. The absurdity of that position is selfevident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his
dissent, that elected officials (vis--vis appointive officials) have greater political clout
over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it
to say that the remedy lies with the Legislature. It is the Legislature that is given the
authority, under our constitutional system, to balance competing interests and thereafter
make policy choices responsive to the exigencies of the times. It is certainly within the
Legislatures power to make the deemed-resigned provisions applicable to elected
officials, should it later decide that the evils sought to be prevented are of such frequency
and magnitude as to tilt the balance in favor of expanding the class. This Court cannot
and should not arrogate unto itself the power to ascertain and impose on the people the
best state of affairs from a public policy standpoint.
iii.

Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our


assailed Decision adverted to, and extensively cited, Mancuso v. Taft. This was a
decision of the First Circuit of the United States Court of Appeals promulgated in March
1973, which struck down as unconstitutional a similar statutory provision. Pathetically,
our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is inextricably linked with two
fundamental freedoms freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right
must be subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and
impartiality of its public work force, the deemed-resigned provisions pursue
their objective in a far too heavy-handed manner as to render them
unconstitutional.
It then concluded with the exhortation that since the Americans, from whom we
copied the provision in question, had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow suit.
Our assailed Decisions reliance on Mancuso is completely misplaced. We
cannot blink away the fact that the United States Supreme Court effectively overruled
Mancuso three months after its promulgation by the United States Court of Appeals. In
United States Civil Service Commission, et al. v. National Association of Letter
Carriers AFL-CIO, et al. and Broadrick, et al. v. State of Oklahoma, et al., the United
States Supreme Court was faced with the issue of whether statutory provisions
prohibiting federal and state employees from taking an active part in political
management or in political campaigns were unconstitutional as to warrant facial

invalidation. Violation of these provisions results in dismissal from employment and


possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It
held that (i) in regulating the speech of its employees, the state as employer has interests
that differ significantly from those it possesses in regulating the speech of the citizenry in
general; (ii) the courts must therefore balance the legitimate interest of employee free
expression against the interests of the employer in promoting efficiency of public
services; (iii) if the employees expression interferes with the maintenance of efficient
and regularly functioning services, the limitation on speech is not unconstitutional; and
(iv) the Legislature is to be given some flexibility or latitude in ascertaining which
positions are to be covered by any statutory restrictions. Therefore, insofar as government
employees are concerned, the correct standard of review is an interest-balancing
approach, a means-end scrutiny that examines the closeness of fit between the
governmental interests and the prohibitions in question.
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the
country appears to have been that partisan political activities by federal
employees must be limited if the Government is to operate effectively and
fairly, elections are to play their proper part in representative government,
and employees themselves are to be sufficiently free from improper
influences. The restrictions so far imposed on federal employees are not
aimed at particular parties, groups, or points of view, but apply equally to
all partisan activities of the type described. They discriminate against no
racial, ethnic, or religious minorities. Nor do they seek to control political
opinions or beliefs, or to interfere with or influence anyone's vote at the
polls.

But, as the Court held in Pickering v. Board of Education, the


government has an interest in regulating the conduct and the speech of its
employees that differ(s) significantly from those it possesses in connection
with regulation of the speech of the citizenry in general. The problem in
any case is to arrive at a balance between the interests of the (employee),
as a citizen, in commenting upon matters of public concern and the
interest of the (government), as an employer, in promoting the efficiency of
the public services it performs through its employees. Although Congress
is free to strike a different balance than it has, if it so chooses, we think
the balance it has so far struck is sustainable by the obviously important
interests sought to be served by the limitations on partisan political
activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the


Executive Branch of the Government, or those working for any of its
agencies, should administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a
political party. They are expected to enforce the law and execute the
programs of the Government without bias or favoritism for or against any
political party or group or the members thereof. A major thesis of the
Hatch Act is that to serve this great end of Government-the impartial
execution of the laws-it is essential that federal employees, for example,
not take formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for office on
partisan political tickets. Forbidding activities like these will reduce the
hazards to fair and effective government.

There is another consideration in this judgment: it is not only


important that the Government and its employees in fact avoid practicing
political justice, but it is also critical that they appear to the public to be
avoiding it, if confidence in the system of representative Government is
not to be eroded to a disastrous extent.

Another major concern of the restriction against partisan activities


by federal employees was perhaps the immediate occasion for enactment
of the Hatch Act in 1939. That was the conviction that the rapidly
expanding Government work force should not be employed to build a
powerful, invincible, and perhaps corrupt political machine. The
experience of the 1936 and 1938 campaigns convinced Congress that these
dangers were sufficiently real that substantial barriers should be raised
against the party in power-or the party out of power, for that matter-using
the thousands or hundreds of thousands of federal employees, paid for at
public expense, to man its political structure and political campaigns.

A related concern, and this remains as important as any other, was


to further serve the goal that employment and advancement in the
Government service not depend on political performance, and at the same
time to make sure that Government employees would be free from pressure
and from express or tacit invitation to vote in a certain way or perform
political chores in order to curry favor with their superiors rather than to
act out their own beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many years the joint judgment of
the Executive and Congress has been that to protect the rights of federal

employees with respect to their jobs and their political acts and beliefs it is
not enough merely to forbid one employee to attempt to influence or
coerce another. For example, at the hearings in 1972 on proposed
legislation for liberalizing the prohibition against political activity, the
Chairman of the Civil Service Commission stated that the prohibitions
against active participation in partisan political management and partisan
political campaigns constitute the most significant safeguards against
coercion . . .. Perhaps Congress at some time will come to a different
view of the realities of political life and Government service; but that is its
current view of the matter, and we are not now in any position to dispute
it. Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political


activities is absolute in any event. x x x

As we see it, our task is not to destroy the Act if we can, but to
construe it, if consistent with the will of Congress, so as to comport with
constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is
constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed
restrictions on the partisan political conduct of state employees.
Appellants freely concede that such restrictions serve valid and important
state interests, particularly with respect to attracting greater numbers of
qualified people by insuring their job security, free from the vicissitudes of
the elective process, and by protecting them from political extortion.
Rather, appellants maintain that however permissible, even commendable,
the goals of s 818 may be, its language is unconstitutionally vague and its
prohibitions too broad in their sweep, failing to distinguish between
conduct that may be proscribed and conduct that must be permitted. For
these and other reasons, appellants assert that the sixth and seventh
paragraphs of s 818 are void in toto and cannot be enforced against them
or anyone else.

We have held today that the Hatch Act is not impermissibly vague.
We have little doubt that s 818 is similarly not so vague that men of
common intelligence must necessarily guess at its meaning. Whatever
other problems there are with s 818, it is all but frivolous to suggest that

the section fails to give adequate warning of what activities it proscribes or


fails to set out explicit standards' for those who must apply it. In the
plainest language, it prohibits any state classified employee from being an
officer or member of a partisan political club or a candidate for any
paid public office. It forbids solicitation of contributions for any political
organization, candidacy or other political purpose and taking part in the
management or affairs of any political party or in any political campaign.
Words inevitably contain germs of uncertainty and, as with the Hatch Act,
there may be disputes over the meaning of such terms in s 818 as
partisan, or take part in, or affairs of political parties. But what was
said in Letter Carriers, is applicable here: there are limitations in the
English language with respect to being both specific and manageably
brief, and it seems to us that although the prohibitions may not satisfy
those intent on finding fault at any cost, they are set out in terms that the
ordinary person exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to the public interest.' x x x

xxxx

[Appellants] nevertheless maintain that the statute is overbroad and


purports to reach protected, as well as unprotected conduct, and must
therefore be struck down on its face and held to be incapable of any
constitutional application. We do not believe that the overbreadth doctrine
may appropriately be invoked in this manner here.

xxxx

The consequence of our departure from traditional rules of


standing in the First Amendment area is that any enforcement of a statute
thus placed at issue is totally forbidden until and unless a limiting
construction or partial invalidation so narrows it as to remove the seeming
threat or deterrence to constitutionally protected expression. Application
of the overbreadth doctrine in this manner is, manifestly, strong medicine.
It has been employed by the Court sparingly and only as a last resort. x x x

x x x But the plain import of our cases is, at the very least, that
facial over-breadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves
from pure speech toward conduct and that conduct-even if expressivefalls within the scope of otherwise valid criminal laws that reflect
legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct. Although such laws, if too
broadly worded, may deter protected speech to some unknown extent,
there comes a point where that effect-at best a prediction-cannot, with
confidence, justify invalidating a statute on its face and so prohibiting a
State from enforcing the statute against conduct that is admittedly within
its power to proscribe. To put the matter another way, particularly where
conduct and not merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep. It is our view
that s 818 is not substantially overbroad and that whatever overbreadth
may exist should be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad


regulatory acts, s 818 is directed, by its terms, at political expression
which if engaged in by private persons would plainly be protected by the
First and Fourteenth Amendments. But at the same time, s 818 is not a
censorial statute, directed at particular groups or viewpoints. The statute,
rather, seeks to regulate political activity in an even-handed and neutral
manner. As indicted, such statutes have in the past been subject to a less
exacting overbreadth scrutiny. Moreover, the fact remains that s 818
regulates a substantial spectrum of conduct that is as manifestly subject to
state regulation as the public peace or criminal trespass. This much was
established in United Public Workers v. Mitchell, and has been
unhesitatingly reaffirmed today in Letter Carriers. Under the decision in
Letter Carriers, there is no question that s 818 is valid at least insofar as
it forbids classified employees from: soliciting contributions for partisan
candidates, political parties, or other partisan political purposes; becoming
members of national, state, or local committees of political parties, or
officers or committee members in partisan political clubs, or candidates
for any paid public office; taking part in the management or affairs of any
political party's partisan political campaign; serving as delegates or
alternates to caucuses or conventions of political parties; addressing or
taking an active part in partisan political rallies or meetings; soliciting
votes or assisting voters at the polls or helping in a partisan effort to get
voters to the polls; participating in the distribution of partisan campaign

literature; initiating or circulating partisan nominating petitions; or riding


in caravans for any political party or partisan political candidate.

x x x It may be that such restrictions are impermissible and that s


818 may be susceptible of some other improper applications. But, as
presently construed, we do not believe that s 818 must be discarded in toto
because some persons arguably protected conduct may or may not be
caught or chilled by the statute. Section 818 is not substantially overbroad
and it not, therefore, unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not
deny the principles enunciated in Letter Carriers and Broadrick. He would hold,
nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since
they pertain to different types of laws and were decided based on a different set of
facts, viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch Acts
prohibition against active participation in political management or
political campaigns. The plaintiffs desired to campaign for candidates for
public office, to encourage and get federal employees to run for state and
local offices, to participate as delegates in party conventions, and to hold
office in a political club.

In Broadrick, the appellants sought the invalidation for being


vague and overbroad a provision in the (sic) Oklahomas Merit System of
Personnel Administration Act restricting the political activities of the
States classified civil servants, in much the same manner as the Hatch Act
proscribed partisan political activities of federal employees. Prior to the
commencement of the action, the appellants actively participated in the
1970 reelection campaign of their superior, and were administratively
charged for asking other Corporation Commission employees to do
campaign work or to give referrals to persons who might help in the
campaign, for soliciting money for the campaign, and for receiving and
distributing campaign posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic


resignation provision. Kenneth Mancuso, a full time police officer and
classified civil service employee of the City of Cranston, filed as a
candidate for nomination as representative to the Rhode Island General

Assembly. The Mayor of Cranston then began the process of enforcing the
resign-to-run provision of the City Home Rule Charter.

Clearly, as the above-cited US cases pertain to different types of


laws and were decided based on a different set of facts, Letter Carriers
and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x
(italics in the original)
We hold, however, that his position is belied by a plain reading of these cases.
Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the
constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for
nomination as representative to the Rhode Island General Assembly. He
assailed the constitutionality of 14.09(c) of the City Home Rule Charter,
which prohibits continuing in the classified service of the city after becoming
a candidate for nomination or election to any public office.
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch Acts
prohibition against active participation in political management or political
campaigns with respect to certain defined activities in which they desired to
engage. The plaintiffs relevant to this discussion are
(a) The National Association of Letter Carriers, which alleged that
its members were desirous of, among others, running in local
elections for offices such as school board member, city council
member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as
a candidate for the office of Borough Councilman in his local
community for fear that his participation in a partisan election
would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a
Republican candidate in the 1971 partisan election for the
mayor of West Lafayette, Indiana, and that he would do so
except for fear of losing his job by reason of violation of the
Hatch Act.
The Hatch Act defines active participation in political management or
political campaigns by cross-referring to the rules made by the Civil Service
Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office: Candidacy for a nomination


or for election to any National, State, county, or municipal
office is not permissible. The prohibition against political
activity extends not merely to formal announcement of
candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or
doing or permitting to be done any act in furtherance of
candidacy. The fact that candidacy, is merely passive is
immaterial; if an employee acquiesces in the efforts of
friends in furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against political
activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids the use
of appropriated funds thereafter to pay compensation to these persons.
(3) Broadrick was a class action brought by certain Oklahoma state employees
seeking a declaration of unconstitutionality of two sub-paragraphs of Section
818 of Oklahomas Merit System of Personnel Administration Act. Section
818 (7), the paragraph relevant to this discussion, states that [n]o employee
in the classified service shall be a candidate for nomination or election to
any paid public office Violation of Section 818 results in dismissal from
employment, possible criminal sanctions and limited state employment
ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively
overruled Mancuso. By no stretch of the imagination could Mancuso still be held
operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-torun laws, and (ii) were decided by a superior court, the United States Supreme Court. It
was thus not surprising for the First Circuit Court of Appeals the same court that
decided Mancuso to hold categorically and emphatically in Magill v. Lynch that
Mancuso is no longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city
office in 1975. Pawtuckets Little Hatch Act prohibits city employees
from engaging in a broad range of political activities. Becoming a
candidate for any city office is specifically proscribed, the violation being
punished by removal from office or immediate dismissal. The firemen
brought an action against the city officials on the ground that that the
provision of the city charter was unconstitutional. However, the court,
fully cognizant of Letter Carriers and Broadrick, took the position that
Mancuso had since lost considerable vitality. It observed that the view
that political candidacy was a fundamental interest which could be
infringed upon only if less restrictive alternatives were not available,
was a position which was no longer viable, since the Supreme Court
(finding that the governments interest in regulating both the conduct

and speech of its employees differed significantly from its interest in


regulating those of the citizenry in general) had given little weight to
the argument that prohibitions against the coercion of government
employees were a less drastic means to the same end, deferring to the
judgment of Congress, and applying a balancing test to determine
whether limits on political activity by public employees substantially
served government interests which were important enough to
outweigh the employees First Amendment rights.

It must be noted that the Court of Appeals ruled in this manner


even though the election in Magill was characterized as nonpartisan, as it
was reasonable for the city to fear, under the circumstances of that case,
that politically active bureaucrats might use their official power to help
political friends and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's


charter provision, which bars a city employee's candidacy
in even a nonpartisan city election, is constitutional. The
issue compels us to extrapolate two recent Supreme Court
decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both dealt with laws
barring civil servants from partisan political activity. Letter
Carriers reaffirmed United Public Workers v. Mitchell,
upholding the constitutionality of the Hatch Act as to
federal employees. Broadrick sustained Oklahoma's Little
Hatch Act against constitutional attack, limiting its
holding to Oklahoma's construction that the Act barred only
activity in partisan politics. In Mancuso v. Taft, we assumed
that proscriptions of candidacy in nonpartisan elections
would not be constitutional. Letter Carriers and Broadrick
compel new analysis.

xxxx

What we are obligated to do in this case, as the


district court recognized, is to apply the Courts interest
balancing approach to the kind of nonpartisan election
revealed in this record. We believe that the district court

found more residual vigor in our opinion in Mancuso v.


Taft than remains after Letter Carriers. We have particular
reference to our view that political candidacy was a
fundamental interest which could be trenched upon only if
less restrictive alternatives were not available. While this
approach may still be viable for citizens who are not
government employees, the Court in Letter Carriers
recognized that the government's interest in regulating both
the conduct and speech of its employees differs
significantly from its interest in regulating those of the
citizenry in general. Not only was United Public Workers v.
Mitchell "unhesitatingly" reaffirmed, but the Court gave
little weight to the argument that prohibitions against the
coercion of government employees were a less drastic
means to the same end, deferring to the judgment of the
Congress. We cannot be more precise than the Third Circuit
in characterizing the Court's approach as "some sort of
'balancing' process". It appears that the government may
place limits on campaigning by public employees if the
limits substantially serve government interests that are
"important" enough to outweigh the employees' First
Amendment rights. x x x (italics supplied)

Upholding thus the constitutionality of the law in question, the


Magill court detailed the major governmental interests discussed in Letter
Carriers and applied them to the Pawtucket provision as follows:

In Letter Carriers[,] the first interest identified by


the Court was that of an efficient government, faithful to
the Congress rather than to party. The district court
discounted this interest, reasoning that candidates in a local
election would not likely be committed to a state or
national platform. This observation undoubtedly has
substance insofar as allegiance to broad policy positions is
concerned. But a different kind of possible political
intrusion into efficient administration could be thought to
threaten municipal government: not into broad policy
decisions, but into the particulars of administration
favoritism in minute decisions affecting welfare, tax
assessments, municipal contracts and purchasing, hiring,
zoning, licensing, and inspections. Just as the Court in
Letter Carriers identified a second governmental interest in

the avoidance of the appearance of "political justice" as to


policy, so there is an equivalent interest in avoiding the
appearance of political preferment in privileges,
concessions, and benefits. The appearance (or reality) of
favoritism that the charter's authors evidently feared is not
exorcised by the nonpartisan character of the formal
election process. Where, as here, party support is a key to
successful campaigning, and party rivalry is the norm, the
city might reasonably fear that politically active
bureaucrats would use their official power to help political
friends and hurt political foes. This is not to say that the
city's interest in visibly fair and effective administration
necessarily justifies a blanket prohibition of all employee
campaigning; if parties are not heavily involved in a
campaign, the danger of favoritism is less, for neither
friend nor foe is as easily identified.

A second major governmental interest identified in


Letter Carriers was avoiding the danger of a powerful
political machine. The Court had in mind the large and
growing federal bureaucracy and its partisan potential. The
district court felt this was only a minor threat since parties
had no control over nominations. But in fact candidates
sought party endorsements, and party endorsements proved
to be highly effective both in determining who would
emerge from the primary election and who would be
elected in the final election. Under the prevailing customs,
known party affiliation and support were highly significant
factors in Pawtucket elections. The charter's authors might
reasonably have feared that a politically active public work
force would give the incumbent party, and the incumbent
workers, an unbreakable grasp on the reins of power. In
municipal elections especially, the small size of the
electorate and the limited powers of local government may
inhibit the growth of interest groups powerful enough to
outbalance the weight of a partisan work force. Even when
nonpartisan issues and candidacies are at stake, isolated
government employees may seek to influence voters or
their co-workers improperly; but a more real danger is that
a central party structure will mass the scattered powers of
government workers behind a single party platform or slate.
Occasional misuse of the public trust to pursue private
political ends is tolerable, especially because the political
views of individual employees may balance each other out.

But party discipline eliminates this diversity and tends to


make abuse systematic. Instead of a handful of employees
pressured into advancing their immediate superior's
political ambitions, the entire government work force may
be expected to turn out for many candidates in every
election. In Pawtucket, where parties are a continuing
presence in political campaigns, a carefully orchestrated
use of city employees in support of the incumbent party's
candidates is possible. The danger is scarcely lessened by
the openness of Pawtucket's nominating procedure or the
lack of party labels on its ballots.

The third area of proper governmental interest in


Letter Carriers was ensuring that employees achieve
advancement on their merits and that they be free from both
coercion and the prospect of favor from political activity.
The district court did not address this factor, but looked
only to the possibility of a civil servant using his position to
influence voters, and held this to be no more of a threat
than in the most nonpartisan of elections. But we think that
the possibility of coercion of employees by superiors
remains as strong a factor in municipal elections as it was
in Letter Carriers. Once again, it is the systematic and
coordinated exploitation of public servants for political
ends that a legislature is most likely to see as the primary
threat of employees' rights. Political oppression of public
employees will be rare in an entirely nonpartisan system.
Some superiors may be inclined to ride herd on the politics
of their employees even in a nonpartisan context, but
without party officials looking over their shoulders most
supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally


restrict its employees' participation in nominally
nonpartisan elections if political parties play a large role in
the campaigns. In the absence of substantial party
involvement, on the other hand, the interests identified by
the Letter Carriers Court lose much of their force. While
the employees' First Amendment rights would normally
outbalance these diminished interests, we do not suggest
that they would always do so. Even when parties are
absent, many employee campaigns might be thought to

endanger at least one strong public interest, an interest that


looms larger in the context of municipal elections than it
does in the national elections considered in Letter Carriers.
The city could reasonably fear the prospect of a subordinate
running directly against his superior or running for a
position that confers great power over his superior. An
employee of a federal agency who seeks a Congressional
seat poses less of a direct challenge to the command and
discipline of his agency than a fireman or policeman who
runs for mayor or city council. The possibilities of internal
discussion, cliques, and political bargaining, should an
employee gather substantial political support, are
considerable. (citations omitted)

The court, however, remanded the case to the district court for
further proceedings in respect of the petitioners overbreadth charge.
Noting that invalidating a statute for being overbroad is not to be taken
lightly, much less to be taken in the dark, the court held:

The governing case is Broadrick, which introduced


the doctrine of "substantial" overbreadth in a closely
analogous case. Under Broadrick, when one who
challenges a law has engaged in constitutionally
unprotected conduct (rather than unprotected speech) and
when the challenged law is aimed at unprotected conduct,
"the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly
legitimate sweep." Two major uncertainties attend the
doctrine: how to distinguish speech from conduct, and how
to define "substantial" overbreadth. We are spared the first
inquiry by Broadrick itself. The plaintiffs in that case had
solicited support for a candidate, and they were subject to
discipline under a law proscribing a wide range of
activities, including soliciting contributions for political
candidates and becoming a candidate. The Court found that
this combination required a substantial overbreadth
approach. The facts of this case are so similar that we may
reach the same result without worrying unduly about the
sometimes opaque distinction between speech and conduct.

The second difficulty is not so easily disposed of.


Broadrick found no substantial overbreadth in a statute
restricting partisan campaigning. Pawtucket has gone
further, banning participation in nonpartisan campaigns as
well. Measuring the substantiality of a statute's
overbreadth apparently requires, inter alia, a rough
balancing of the number of valid applications compared to
the number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application that
is far-fetched does not deserve as much weight as one that
is probable. The question is a matter of degree; it will
never be possible to say that a ratio of one invalid to nine
valid applications makes a law substantially overbroad.
Still, an overbreadth challenger has a duty to provide the
court with some idea of the number of potentially invalid
applications the statute permits. Often, simply reading the
statute in the light of common experience or litigated cases
will suggest a number of probable invalid applications. But
this case is different. Whether the statute is overbroad
depends in large part on the number of elections that are
insulated from party rivalry yet closed to Pawtucket
employees. For all the record shows, every one of the city,
state, or federal elections in Pawtucket is actively contested
by political parties. Certainly the record suggests that
parties play a major role even in campaigns that often are
entirely nonpartisan in other cities. School committee
candidates, for example, are endorsed by the local
Democratic committee.

The state of the record does not permit us to find


overbreadth; indeed such a step is not to be taken lightly,
much less to be taken in the dark. On the other hand, the
entire focus below, in the short period before the election
was held, was on the constitutionality of the statute as
applied. Plaintiffs may very well feel that further efforts are
not justified, but they should be afforded the opportunity to
demonstrate that the charter forecloses access to a
significant number of offices, the candidacy for which by
municipal employees would not pose the possible threats to
government efficiency and integrity which Letter Carriers,
as we have interpreted it, deems significant. Accordingly,
we remand for consideration of plaintiffs' overbreadth
claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate


beyond doubt that Mancuso v. Taft, heavily relied upon by the
ponencia, has effectively been overruled. As it is no longer good law, the
ponencias exhortation that [since] the Americans, from whom we copied
the provision in question, had already stricken down a similar measure for
being unconstitutional[,] it is high-time that we, too, should follow suit is
misplaced and unwarranted.
Accordingly, our assailed Decisions submission that the right to run for public
office is inextricably linked with two fundamental freedoms those of expression and
association lies on barren ground. American case law has in fact never recognized a
fundamental right to express ones political views through candidacy, as to invoke a
rigorous standard of review. Bart v. Telford pointedly stated that [t]he First
Amendment does not in terms confer a right to run for public office, and this court has
held that it does not do so by implication either. Thus, ones interest in seeking office, by
itself, is not entitled to constitutional protection. Moreover, one cannot bring ones action
under the rubric of freedom of association, absent any allegation that, by running for an
elective position, one is advancing the political ideas of a particular set of voters.
Prescinding from these premises, it is crystal clear that the provisions challenged in
the case at bar, are not violative of the equal protection clause. The deemed-resigned
provisions substantially serve governmental interests (i.e., (i) efficient civil service
faithful to the government and the people rather than to party; (ii) avoidance of the
appearance of political justice as to policy; (iii) avoidance of the danger of a powerful
political machine; and (iv) ensuring that employees achieve advancement on their merits
and that they be free from both coercion and the prospect of favor from political activity).
These are interests that are important enough to outweigh the non-fundamental right of
appointive officials and employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v.
Fashing and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al. to
buttress his dissent. Maintaining that resign-to-run provisions are valid only when made
applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the constitutionality of
resign-to-run provisions when applied to specified or particular officials,
as distinguished from all others, under a classification that is germane
to the purposes of the law. These resign-to-run legislations were not
expressed in a general and sweeping provision, and thus did not violate
the test of being germane to the purpose of the law, the second requisite
for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis in the
original)

This reading is a regrettable misrepresentation of Clements and Morial. The


resign-to-run provisions in these cases were upheld not because they referred to specified
or particular officials (vis--vis a general class); the questioned provisions were found
valid precisely because the Court deferred to legislative judgment and found that a
regulation is not devoid of a rational predicate simply because it happens to be
incomplete. In fact, the equal protection challenge in Clements revolved around the
claim that the State of Texas failed to explain why some public officials are subject to the
resign-to-run provisions, while others are not. Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the
holders of certain offices automatically resign their positions if they
become candidates for any other elected office, unless the unexpired
portion of the current term is one year or less. The burdens that 65
imposes on candidacy are even less substantial than those imposed by
19. The two provisions, of course, serve essentially the same state
interests. The District Court found 65 deficient, however, not because of
the nature or extent of the provision's restriction on candidacy, but because
of the manner in which the offices are classified. According to the District
Court, the classification system cannot survive equal protection scrutiny,
because Texas has failed to explain sufficiently why some elected public
officials are subject to 65 and why others are not. As with the case of
19, we conclude that 65 survives a challenge under the Equal Protection
Clause unless appellees can show that there is no rational predicate to the
classification scheme.

The history behind 65 shows that it may be upheld consistent


with the "one step at a time" approach that this Court has undertaken with
regard to state regulation not subject to more vigorous scrutiny than that
sanctioned by the traditional principles. Section 65 was enacted in 1954 as
a transitional provision applying only to the 1954 election. Section 65
extended the terms of those offices enumerated in the provision from two
to four years. The provision also staggered the terms of other offices so
that at least some county and local offices would be contested at each
election. The automatic resignation proviso to 65 was not added until
1958. In that year, a similar automatic resignation provision was added in
Art. XI, 11, which applies to officeholders in home rule cities who serve
terms longer than two years. Section 11 allows home rule cities the option
of extending the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of


the State's electoral reforms of 1958. That the State did not go further in
applying the automatic resignation provision to those officeholders whose

terms were not extended by 11 or 65, absent an invidious purpose, is


not the sort of malfunctioning of the State's lawmaking process forbidden
by the Equal Protection Clause. A regulation is not devoid of a rational
predicate simply because it happens to be incomplete. The Equal
Protection Clause does not forbid Texas to restrict one elected
officeholder's candidacy for another elected office unless and until it
places similar restrictions on other officeholders. The provision's language
and its history belie any notion that 65 serves the invidious purpose of
denying access to the political process to identifiable classes of potential
candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that there
is no blanket approval of restrictions on the right of public employees to become
candidates for public office out of context. A correct reading of that line readily shows
that the Court only meant to confine its ruling to the facts of that case, as each equal
protection challenge would necessarily have to involve weighing governmental interests
vis--vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political
association are unquestionably entitled to the protection of the first and
fourteenth amendments. Nothing in today's decision should be taken to
imply that public employees may be prohibited from expressing their
private views on controversial topics in a manner that does not interfere
with the proper performance of their public duties. In today's decision,
there is no blanket approval of restrictions on the right of public
employees to become candidates for public office. Nor do we approve any
general restrictions on the political and civil rights of judges in particular.
Our holding is necessarily narrowed by the methodology employed to
reach it. A requirement that a state judge resign his office prior to
becoming a candidate for non-judicial office bears a reasonably necessary
relation to the achievement of the state's interest in preventing the actuality
or appearance of judicial impropriety. Such a requirement offends neither
the first amendment's guarantees of free expression and association nor the
fourteenth amendment's guarantee of equal protection of the laws. (italics
supplied)

Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which
of its employment positions require restrictions on partisan political
activities and which may be left unregulated. And a State can hardly be
faulted for attempting to limit the positions upon which such restrictions
are placed. (citations omitted)

V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code on equal protection ground, our assailed
Decision struck them down for being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding
appointive posts without due regard for the type of position being held by the
employee seeking an elective post and the degree of influence that may be
attendant thereto; and
(2) The assailed provisions limit the candidacy of any and all civil servants
holding appointive positions without due regard for the type of office being
sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i.

Limitation on Candidacy Regardless of Incumbent Appointive Officials


Position, Valid

According to the assailed Decision, the challenged provisions of law are overly
broad because they apply indiscriminately to all civil servants holding appointive posts,
without due regard for the type of position being held by the employee running for
elective office and the degree of influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are
extant only when the incumbent appointive official running for elective office holds an
influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible,
threat to the government posed by the partisan potential of a large and growing
bureaucracy: the danger of systematic abuse perpetuated by a powerful political
machine that has amassed the scattered powers of government workers so as to give
itself and its incumbent workers an unbreakable grasp on the reins of power. As
elucidated in our prior exposition:
Attempts by government employees to wield influence over others
or to make use of their respective positions (apparently) to promote their
own candidacy may seem tolerable even innocuous particularly when
viewed in isolation from other similar attempts by other government
employees. Yet it would be decidedly foolhardy to discount the equally (if
not more) realistic and dangerous possibility that such seemingly
disjointed attempts, when taken together, constitute a veiled effort on the

part of an emerging central party structure to advance its own agenda


through a carefully orchestrated use of [appointive and/or elective]
officials coming from various levels of the bureaucracy.

[T]he avoidance of such a politically active public work force


which could give an emerging political machine an unbreakable grasp on
the reins of power is reason enough to impose a restriction on the
candidacies of all appointive public officials without further distinction as
to the type of positions being held by such employees or the degree of
influence that may be attendant thereto. (citations omitted)

ii.

Limitation on Candidacy Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly
broad because they are made to apply indiscriminately to all civil servants holding
appointive offices, without due regard for the type of elective office being sought,
whether it be partisan or nonpartisan in character, or in the national, municipal or
barangay level.
This erroneous ruling is premised on the assumption that the concerns of a truly
partisan office and the temptations it fosters are sufficiently different from those involved
in an office removed from regular party politics [so as] to warrant distinctive treatment,
so that restrictions on candidacy akin to those imposed by the challenged provisions can
validly apply only to situations in which the elective office sought is partisan in character.
To the extent, therefore, that such restrictions are said to preclude even candidacies for
nonpartisan elective offices, the challenged restrictions are to be considered as
overbroad.
Again, a careful study of the challenged provisions and related laws on the matter
will show that the alleged overbreadth is more apparent than real. Our exposition on this
issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the
rules and guidelines set forth therein refer to the filing of certificates of
candidacy and nomination of official candidates of registered political
parties, in connection with the May 10, 2010 National and Local
Elections. Obviously, these rules and guidelines, including the restriction
in Section 4(a) of Resolution 8678, were issued specifically for purposes
of the May 10, 2010 National and Local Elections, which, it must be
noted, are decidedly partisan in character. Thus, it is clear that the
restriction in Section 4(a) of RA 8678 applies only to the candidacies of
appointive officials vying for partisan elective posts in the May 10, 2010

National and Local Elections. On this score, the overbreadth challenge


leveled against Section 4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and


Section 66 of the Omnibus Election Code, in conjunction with other
related laws on the matter, will confirm that these provisions are likewise
not intended to apply to elections for nonpartisan public offices.

The only elections which are relevant to the present inquiry are the
elections for barangay offices, since these are the only elections in this
country which involve nonpartisan public offices.

In this regard, it is well to note that from as far back as the


enactment of the Omnibus Election Code in 1985, Congress has intended
that these nonpartisan barangay elections be governed by special rules,
including a separate rule on deemed resignations which is found in Section
39 of the Omnibus Election Code. Said provision states:

Section 39. Certificate of Candidacy. No person shall be


elected punong barangay or kagawad ng sangguniang
barangay unless he files a sworn certificate of candidacy in
triplicate on any day from the commencement of the
election period but not later than the day before the
beginning of the campaign period in a form to be
prescribed by the Commission. The candidate shall state the
barangay office for which he is a candidate.

xxxx

Any elective or appointive municipal, city, provincial or


national official or employee, or those in the civil or
military service, including those in government-owned orcontrolled corporations, shall be considered automatically

resigned upon the filing of certificate of candidacy for a


barangay office.

Since barangay elections are governed by a separate deemed


resignation rule, under the present state of law, there would be no occasion
to apply the restriction on candidacy found in Section 66 of the Omnibus
Election Code, and later reiterated in the proviso of Section 13 of RA
9369, to any election other than a partisan one. For this reason, the
overbreadth challenge raised against Section 66 of the Omnibus Election
Code and the pertinent proviso in Section 13 of RA 9369 must also fail.
In any event, even if we were to assume, for the sake of argument, that Section 66
of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369
are general rules that apply also to elections for nonpartisan public offices, the
overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling
only partisan behavior has not received judicial imprimatur, because the
general proposition of the relevant US cases on the matter is simply that
the government has an interest in regulating the conduct and speech of its
employees that differs significantly from those it possesses in connection
with regulation of the speech of the citizenry in general.

Moreover, in order to have a statute declared as unconstitutional or


void on its face for being overly broad, particularly where, as in this case,
conduct and not pure speech is involved, the overbreadth must not
only be real, but substantial as well, judged in relation to the statutes
plainly legitimate sweep.

In operational terms, measuring the substantiality of a statutes


overbreadth would entail, among other things, a rough balancing of the
number of valid applications compared to the number of potentially
invalid applications. In this regard, some sensitivity to reality is needed; an
invalid application that is far-fetched does not deserve as much weight as
one that is probable. The question is a matter of degree. Thus, assuming
for the sake of argument that the partisan-nonpartisan distinction is valid
and necessary such that a statute which fails to make this distinction is
susceptible to an overbreadth attack, the overbreadth challenge presently
mounted must demonstrate or provide this Court with some idea of the
number of potentially invalid elections (i.e. the number of elections that

were insulated from party rivalry but were nevertheless closed to


appointive employees) that may in all probability result from the
enforcement of the statute.

The state of the record, however, does not permit us to find


overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a
step is not to be taken lightly, much less to be taken in the dark, especially
since an overbreadth finding in this case would effectively prohibit the
State from enforcing an otherwise valid measure against conduct that is
admittedly within its power to proscribe.
This Court would do well to proceed with tiptoe caution, particularly when it
comes to the application of the overbreadth doctrine in the analysis of statutes that
purportedly attempt to restrict or burden the exercise of the right to freedom of speech,
for such approach is manifestly strong medicine that must be used sparingly, and only as
a last resort.
In the United States, claims of facial overbreadth have been entertained only
where, in the judgment of the court, the possibility that protected speech of others may be
muted and perceived grievances left to fester (due to the possible inhibitory effects of
overly broad statutes) outweighs the possible harm to society in allowing some
unprotected speech or conduct to go unpunished. Facial overbreadth has likewise not
been invoked where a limiting construction could be placed on the challenged statute, and
where there are readily apparent constructions that would cure, or at least substantially
reduce, the alleged overbreadth of the statute.
In the case at bar, the probable harm to society in permitting incumbent
appointive officials to remain in office, even as they actively pursue elective posts, far
outweighs the less likely evil of having arguably protected candidacies blocked by the
possible inhibitory effect of a potentially overly broad statute.
In this light, the conceivably impermissible applications of the challenged statutes
which are, at best, bold predictions cannot justify invalidating these statutes in toto
and prohibiting the State from enforcing them against conduct that is, and has for more
than 100 years been, unquestionably within its power and interest to proscribe. Instead,
the more prudent approach would be to deal with these conceivably impermissible
applications through case-by-case adjudication rather than through a total invalidation of
the statute itself.
Indeed, the anomalies spawned by our assailed Decision have taken place. In his
Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking
Cabinet members had already filed their Certificates of Candidacy without relinquishing
their posts. Several COMELEC election officers had likewise filed their Certificates of
Candidacy in their respective provinces. Even the Secretary of Justice had filed her

certificate of substitution for representative of the first district of Quezon province last
December 14, 2009 even as her position as Justice Secretary includes supervision over
the City and Provincial Prosecutors, who, in turn, act as Vice-Chairmen of the respective
Boards of Canvassers. The Judiciary has not been spared, for a Regional Trial Court
Judge in the South has thrown his hat into the political arena. We cannot allow the tilting
of our electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and
Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code,
are not unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and
the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts
December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring
as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2)
the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3)
Section 66 of the Omnibus Election Code.
1. The scope of the equal protection clause, 95 SCRA 420

2. Equal protection of the law, 13 SCRA 266

3. Requisites for a valid classificationRead:

1. People vs. Cayat, 68 Phil. 12

1. There must be real and substantial distinctions;


2. It must be germane tot he purposes of the law;
3. It must not be limited to existing conditions only; and
4. It must apply equally to all members of the same class.

2. Read again, Association of Small Landowners vs. Sec. of Agrarian reform, July
14, 1989
4. Equal protection in general-

Read:

1. P. vs. Vera, 65 Phil. 56


2. TIU VS. CA, 301 SCRA 278 (There is real and substantial distinction between business
inside the Subic Special Economic Zone and outside wherein those inside are exempt
from other taxes as a result of the policy of the government to accelerate the development
of the portion of Subic left by the Americans)

3. IMELDA MARCOS VS. CA, 278 SCRA 843

4. HIMAGAN VS. PEOPLE, October 7, 1994


The fact that policemen charged with a criminal offense punishable by more than
6 years are to be suspended during the entire duration of the case unlike other
government employees is valid since it rests on valid classification because
policemen carry weapons and the badge of the law which can be used to harass or
intimidate witnesses against them.

There is no violation of the equal protection clause when the Compensation and Classification
Act of 1989 includes certain allowances and fringe benefits into the standardized salaries of most
government employees but not to police and military personnel.

VICTORIA C. GUTIERREZ,
et al vs. DEPARTMENT OF
BUDGET AND MANAGEMENT,
G.R. No. 153266,
March 18, 2010
ABAD, J.:

These consolidated cases question the inclusion of certain allowances and fringe
benefits into the standardized salary rates for offices in the national government, state
universities and colleges, and local government units as required by the Compensation
and Position Classification Act of 1989 and implemented through the challenged National
Compensation Circular 59 (NCC 59) while the said allowances and other fringe benefits
are not included insofar as members of the police and military are concerned.
The Facts and the Case
Congress enacted in 1989 Republic Act (R.A.) 6758, called the Compensation and
Position Classification Act of 1989 to rationalize the compensation of government
employees. Its Section 12 directed the consolidation of allowances and additional
compensation already being enjoyed by employees into their standardized salary rates.
But it exempted certain additional compensations that the employees may be receiving
from such consolidation. Thus:
Section 12. Consolidation of Allowances and Compensation. -All allowances, except for representation and transportation
allowances; clothing and laundry allowances; subsistence allowance of
marine officers and crew on board government vessels and hospital
personnel; hazard pay; allowances of foreign service personnel
stationed abroad; and such other additional compensation not
otherwise specified herein as may be determined by the DBM, shall be
deemed included in the standardized salary rates herein prescribed.
Such other additional compensation, whether in cash or in kind, being
received by incumbents only as of July 1, 1989 not integrated into the
standardized salary rates shall continue to be authorized.
The Issue:
Whether or not the grant of COLA to military and
police personnel to the exclusion of other government
employees violates the equal protection clause.
The Courts Ruling
At the heart of the present controversy is Section 12 of R.A. 6758 as quoted
above. .
As will be noted from the first sentence above, all allowances were deemed
integrated into the standardized salary rates except the following:
(1)

representation and transportation allowances;

(2)

clothing and laundry allowances;

(3)

subsistence allowances of marine officers and crew on board government


vessels;

(4)

subsistence allowances of hospital personnel;

(5)

hazard pay;

(6)

allowances of foreign service personnel stationed abroad; and

(7)

such other additional compensation not otherwise specified in Section 12 as


may be determined by the DBM.

But, while the provision enumerated certain exclusions, it also authorized the
DBM to identify such other additional compensation that may be granted over and above
the standardized salary rates. In Philippine Ports Authority Employees Hired After July
1, 1989 v. Commission on Audit, the Court has ruled that while Section 12 could be
considered self-executing in regard to items (1) to (6), it was not so in regard to item (7).
The DBM still needed to amplify item (7) since one cannot simply assume what other
allowances were excluded from the standardized salary rates. It was only upon the
issuance and effectivity of the corresponding implementing rules and regulations that
item (7) could be deemed legally completed.
Clearly, COLA is not in the nature of an allowance intended to reimburse expenses
incurred by officials and employees of the government in the performance of their official
functions. It is not payment in consideration of the fulfillment of official duty. As
defined, cost of living refers to the level of prices relating to a range of everyday items
or the cost of purchasing those goods and services which are included in an accepted
standard level of consumption. Based on this premise, COLA is a benefit intended to
cover increases in the cost of living. Thus, it is and should be integrated into the
standardized salary rates.
Petitioners contend that the continued grant of COLA to military and police to the
exclusion of other government employees violates the equal protection clause of the
Constitution.
But as respondents pointed out, while it may appear that petitioners are
questioning the constitutionality of these issuances, they are in fact attacking the very
constitutionality of Section 11 of R.A. 6758. It is actually this provision which allows the
uniformed personnel to continue receiving their COLA over and above their basic pay,
thus:
Section 11. Military and Police Personnel. - The base pay of
uniformed personnel of the Armed Forces of the Philippines and the
Integrated National Police shall be as prescribed in the salary
schedule for these personnel in R.A. 6638 and R.A. 6648. The
longevity pay of these personnel shall be as prescribed under R.A.
6638, and R.A. 1134 as amended by R.A. 3725 and R.A. 6648:

Provided, however, That the longevity pay of uniformed personnel of


the Integrated National Police shall include those services rendered as
uniformed members of the police, jail and fire departments of the
local government units prior to the police integration.

All existing types of allowances authorized for uniformed


personnel of the Armed Forces of the Philippines and Integrated
National Police such as cost of living allowance, longevity pay,
quarters allowance, subsistence allowance, clothing allowance, hazard
pay and other allowances shall continue to be authorized.
Nothing is more settled than that the constitutionality of a statute cannot be
attacked collaterally because constitutionality issues must be pleaded directly and not
collaterally.
In any event, the Court is not persuaded that the continued grant of COLA to the
uniformed personnel to the exclusion of other national government officials run afoul the
equal protection clause of the Constitution. The fundamental right of equal protection of
the laws is not absolute, but is subject to reasonable classification. If the groupings are
characterized by substantial distinctions that make real differences, one class may be
treated and regulated differently from another. The classification must also be germane
to the purpose of the law and must apply to all those belonging to the same class.
To be valid and reasonable, the classification must satisfy the following
requirements: (1) it must rest on substantial distinctions; (2) it must be germane to the
purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must
apply equally to all members of the same class.
It is clear from the first paragraph of Section 11 that Congress intended the
uniformed personnel to be continually governed by their respective compensation laws.
Thus, the military is governed by R.A. 6638, as amended by R.A. 9166 while the police
is governed by R.A. 6648, as amended by R.A. 6975.
Certainly, there are valid reasons to treat the uniformed personnel differently from
other national government officials. Being in charged of the actual defense of the State
and the maintenance of internal peace and order, they are expected to be
stationed virtually anywhere in the country. They are likely to be assigned to a variety of
low, moderate, and high-cost areas. Since their basic pay does not vary based on
location, the continued grant of COLA is intended to help them offset the effects of living
in higher cost areas.
2-A Gumabon vs. Director of Prisons, 37 SCRA 420
2-b. PANFILO LACSON VS. SANDIGANBAYAN, January 20, 1999

2-b-1. BASCO VS. PAGCOR, May 14, 1991

No violation of the equal protection clause if Congress would legalize cockfighting and horse racing since police power could regulate gambling.

3. PHILIPPINE JUDGES ASSOCIATION VS. PRADO, November 11, 1993

There is no valid distinction for a law removing the franking privilege of the
judiciary while leaving the same to the Executive and Legislative despite the fact
that there is considerable volume of mails from the courts. Loss of revenue is not
a valid ground unless it would be withdrawn to all government offices.

FRANCISCO TATAD vs. THE SECRETARY OF DEPARTMENT OF


ENERGY, G. R. No. 124360, November 5, 1997

EDCEL LAGMAN, JOKER ARROYO, ENRIQUE GARCIA, WIGBERTO


TANADA, FLAG HUMAN RIGHTS FOUNDATION vs. HON. RUBEN
TORRES, HON. FRANCISCO VIRAY, PETRON, FILIPINAS SHELL and
CALTEX PHILIPPINES, G.R. No. 127867, November 5, 1997.

PUNO, J.

These petitions challenge the constitutionality of Republic Act No. 8180 entitled
An Act Deregulating the Downstream Oil Industry and for Other Purposes. RA
8180 seeks to end 26 years of government regulation of the downstream oil
industry.

The facts:

1. Prior to 1971, no government agency was regulating the oil industry. New players were
free to enter the oil market without any government interference. There were four (4)
refining companies at that time. SHELL, CALTEX, BATAAN REFINING COMPANY
and FILOIL MARKETING and six (6) petroleum marketing companies: ESSO, FILOIL,
CALTEX, GETTY, MOBIL and SHELL;
2. In 1971, the country was driven to its knees by the crippling oil crisis and in order to
remedy the same, the OIL INDUSTRY COMMISSION ACT was enacted
REGULATING the oil industry ;
3. On November 9, 1973, then President Marcos created the Philippine national Oil
Corporation (PNOC) t break the control of the foreigners to the oil industry. It acquired
ownership of ESSO Philippines and Filoil and likewise bought controlling shares of the
Bataan Refining Corporation. PNOC then operated under the business name PETRON
CORPORATION and for the first time, there was a Filipino presence in the Philippine oil
market;
4. In 1984, Pres. Marcos through section 8 of PD 1956 created the OIL PRICE
STABILIZATION FUND (OPSF) to cushion the effects of frequent changes in the price
of oil caused by the exchange rate adjustments or increase of the world market prices
crude oil and imported petroleum products;
5. By 1985, only three (3) oil companies were left operating in the country. These are:
CALTEX, FILIPINAS SHELL and PNOC;
6. In May, 1987, Pres. Corazon Aquino signed Executive Order No. 172 creating the
ENERGY REULATORY BOARD to regulate the business of importing, exporting,
shipping, transporting, processing, refining, marketing and distributing energy resources
WHEN WARRANTED AND ONLY WHEN PUBLIC NECESSITY REQUIRES. The
Board was empowered to fix and regulate the prices of petroleum products and other
related merchandise;
7. In March, 1996, Congress enacted RA 8180 deregulating the Oil Industry not later than
March, 1997. The law requires that the implementation of the regulation, shall as far as
practicable be made at a time WHEN THE PRICES OF CRUDE OIL AND
PETROLEUM PRODUCTS IN THE WORLD ARE DECLINING AND WHEN THE
EXCHANGE RATE OF THE PESO IN RELATION TO THE US DOLLAR; IS
STABLE;
8. On February 8, 1997, Executive Order No. 372 was issued by President Fidel Ramos
implementing full deregulation ON THE GROUND THAT THE OPSF FUND HAS
BEEN DEPLETED;
9. The petitioners questioned the constitutionality of RA 8180 on the following grounds:

1. Section 5 of RA 8180 violates the equal protection clause of the Constitution;


2. The imposition of different tariff rates does not deregulate the oil industry and even bars
the entry of other players in the oil industry but instead effectively protects the interest of
the oil companies with existing refineries. Thus, it runs counter to the objective of the law
to foster a truly competitive market; The inclusion of Sec. 5 [b] providing for tariff
differential violates Section 26 [1] of Art. VI of the 1987 Constitution which requires
every law to have only one subject which should be expressed in the title thereof;
3. Section 15 of RA 8180 and EO No. 392 are unconstitutional for undue delegation of
legislative power to the President and the Secretary of Energy;
4. EO 392 implementing the full deregulation of the oil industry is unconstitutional since it
is arbitrary and unreasonable since it was enacted due to the alleged depletion of the
OPSF fund, a condition which is not found in RA No. 8180;
5. Section 15 of RA 8180 is unconstitutional for it allows the formation of a de facto cartel
among three existing oil companies in violation of the Constitution prohibiting against
monopolies, combination in restraint of trade and unfair competition.

The provisions of the law being questioned as unconstitutional are Section 5 [b]
and Section 15 which provide:

Section 5 [b] Any law to the contrary notwithstanding and


starting with the effectivity of this Act, tariff duty shall be imposed
and collected on imported crude oil at the rate of 3% and imported
refined petroleum products at the rate of seven (7%) percent,
except fuel oil and LPG, the rate for which shall be the same;
Provided, that beginning on January 1, 2004, the tariff rate on
imported crude oil and refined petroleum products shall be the
same; Provided, further, that this provision may be amended only
by an Act of Congress.

xxx

Section 15. Implementation of full deregulation. Pursuant to


Section 5 [e] of RA 7638, the DOE, upon approval of the
President, implement full deregulation of the downstream oil
industry not later than March, 1997. As far as practicable, the
DOE shall time the full deregulation when the prices of crude oil
and petroleum products in the world market are declining and
when the exchange rate of the peso in relation to the US dollar is
stable.

The issues are:

Procedural Issues:

1. Whether or not the petitions raise justiciable controversy; and


2. Whether or not the petitioners have the standing to question the validity of the subject
law and executive order.

Substantive Issues:

1. Whether or not Section 5 of RA 8180 violates the one titleone subject requirement of
the Constitution;
2. Whether or not Section 5 of RA 8180 violates the equal protection clause of the
Constitution;
3. Whether section 15 violates the constitutional prohibition on undue delegation of
legislative power;
4. Whether or not EO 392 is arbitrary and unreasonable; and
5. Whether or not RA 8180 violates the constitutional prohibition against monopolies,
combinations in restraint of trade and unfair competition.

HELD:

1. Judicial power includes not only the duty of the courts to settle controversies involving
rights but also the duty to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any agency or branch
of the government. The courts, as guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by the legislature transcends the limit
imposed by the fundamental law. When the statute violates the Constitution, it is not only
the right of the judiciary to declare such act as unconstitutional and void.
2. The question of locus standi must likewise fall . As held in KAPATIRAN NG MGA
NAGLILINGKOD SA PAMAHALAAN NG PILIPINAS, INC. VS. TAN, it was held
that:

Objections to taxpayers suit for lack of sufficient personality, standing, or


interest are , however, in the main procedural matters. CONSIDERING THE
IMPORTANCE OF THE CASES TO THE PUBLIC, AND IN KEEPING WITH
THE COURTS DUTY TO DETERMINE WHETHER OR NOT THE OTHER
BRANCHEDS OF GOVERNMENT HAVE KEPT THEMSELVES WITHIN
THE LIMITS OF THE CONSTITUTION AND THE LAWS AND THAT THEY
HAVE NOT ABUSE THE DISCRETION GIVEN TO THEM, THE COURT HAS
BRUSHED ASIDE TECHNICALITIES OF PROCEDURE AND HAS TAKEN
COGNIZANCE OF THESE PETITIONS.

There is no disagreement on the part of the parties as to the far-reaching


importance of the validity of RA 8180. Thus, there is no good sense in being
hyper-technical on the standing of the petitioners for they pose issues which are
significant to our people and which deserve our forthright resolution.

3. It is contended that Section 5[b[ of RA 8180 on tariff differentials violates the


Constitutional prohibition requiring every law to have only one subject which should be
expressed in its title. We do not concur with this contention. As a policy, the Court has
adopted a liberal construction of the one title---one subject rule. We have consistently
ruled that the title need not mirror, fully index or catalogue all contents and minute details
of a law. A law having a single general subject indicated in the title may contain a number
of provisions, no matter how diverse they may be, so long as they are not inconsistent
with or foreign to the general subject, and may be considered in furtherance of such
subject by providing for the method and means of carrying out the general subject. We

hold that Section 5 providing for tariff differential is germane to the subject of RA 8180
which is the deregulation of the downstream oil industry.

4. The contention that there is undue delegation of legislative power when it authorized the
President to determine when deregulation starts is without merit. The petitioners claim
that the phrases as far as practicable, decline of crude oil prices in the world market
and stability of the peso exchange rate to the US dollar are ambivalent, unclear and
inconcrete in meaning and could not therefore provide the determinate or determinable
standards which can guide the President in his decision to fully deregulate the oil
industry. The power of Congress to delegate the execution of laws has long been settled
by this Court in 1916 in the case of COMPANIA GENERAL DE TABACOS DE
FILIPINA VS. THE BOARD OF PUBLIC UTILITY COMMISSIONERS WHERE IT
WAS HELD THAT:

The true distinction is between the delegation of power to make the law , which
necessarily involves a discretion as to what it shall be, and conferring authority or
discretion as to its execution, to be exercised under and in pursuance of the law.
The first cannot be done; to the latter, no valid objection can be made.

Two tests have been developed to determine whether the delegation of the
power to execute laws does not involve the abdication of the power to make law
itself. We delineated the metes and bounds of these tests in EASTERM
SHIPPING LINES VS. POEA, thus:

There are two accepted tests to determine whether or not there is a valid
delegation of legislative power , viz: the completeness test and the sufficiency of
standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislative such that when it reaches the delegate,
the only thing he will do is enforce it. Under the sufficient standard test, there
must be adequate guidelines or limitations in the law to map out the boundaries of
the delegates authority and prevent the delegation from running riot. BOTH
TESTS ARE INTENDED TO PREVENT A TOTAL TRANSFERENCE OF
LEGISLATIVE AUTHORITY TO THE DELEGATE, WHO IS NOT ALLOWED
TO STEP INTO THE SHOES OF THE LEGISLATURE AND EXERCISE A
POWER ESSENTIALLY LEGISLATIVE.

The validity of delegating legislative power is now a quiet area in our


constitutional landscape because such has become an inevitability in light of the
increasing complexity of the task of government. In fact, in HIRABAYASHI VS.
UNITED STATES, the Supreme Court through Justice ISAGANI CRUZ held that
even if the law does not expressly pinpoint the standard, THE COURTS WILL
BEND BACKWARD TO LOCATE THE SAME ELSEWHERE IN ORDER TO
SPARE THE STATUTE; IF IT CAN, FROM CONSTITUTIONAL INFIRMITY.

5. EO No. 392 failed to follow faithfully the standards set by RA 8180 when it considered
the extraneous factor of depletion of the OPSF Fund. The misapplication of this extra
factor cannot be justified. The executive is bereft of any right to alter either by addition or
subtraction the standards set by RA 8180 for it has no power to make laws. To cede to the
executive the power to make laws would invite tyranny and to transgress the separation
of powers. The exercise of delegated power is given a strict scrutiny by courts for the
delegate is a mere agent whose action cannot infringe the terms of the agency.

6. Section 19 of Article XII of the Constitution provides:

The state shall regulate or prohibit monopolies when the public interests so
requires. No combinations in restraint of trade or unfair competition shall be
allowed.

A monopoly is a privilege or peculiar advantage vested in one or more persons or


companies, consisting of the exclusive right or power to carry on a particular
business or trade, manufacture a particular article or control the sale or the whole
market structure in which one or only a few firms dominate the total sales of a
product or service. On the other hand, a combination in restraint of trade is an
agreement or understanding between two or more persons, in the form of contract,
trust, pool, holding company, for the purpose of unduly restricting competition,
monopolizing trade and commerce in a certain commodity, controlling its
production, distribution and price or otherwise interfering with freedom of trade
without statutory authority. Combination in restraint of trade refers to means
while monopoly refers to the end.

Respondents aver that the 4% tariff differential is designed to encourage new


entrants to invest in refineries. They stress that the inventory requirement is meant

to guaranty continuous domestic supply of petroleum and to discourage fly-bynight operators. They also claim that the prohibition against predatory pricing is
intended to protect prospective entrants.

The validity of the assailed provisions of RA 8180 has to be decided in the light of
the letter and spirit of Section 19, Art. XII of the Constitution. While the
Constitution embraced free enterprise as an economic creed, it did not prohibit per
se the operation of monopolies which can, however, be regulated in the public
interest. This distinct free enterprise system is dictated by the need to achieve the
goals of our national economy as defined under Section 1, Art. XII of the
Constitution which are: more equitable distribution of opportunities, income and
wealth; a sustained increase in the amount of goods and services produced by the
nation for all, especially the underprivileged . It also calls for the State to protect
Filipino enterprises against unfair and trades practices.

The provisions on 4% tariff differential, predatory pricing and inventory


requirement blocks the entry of other players and give undue advantage to the 3
oil companies resulting to monopolies or unfair competition. This is so because it
would take billions for new players to construct refineries, and to have big
inventories. This would effectively prevent new players.

In the case at bar, it cannot be denied that our oil industry is operated and
controlled by an oligopoly (dominated by a handful of players) and a foreign
oligopoly at that. As the dominant players, SHELL, CALTEX & PETRON boast
of existing refineries of various capacities. The tariff differential of 4% works to
their immense advantage. Yet, this is only one edge on tariff differential. THE
OTHER EDGE CUTS AND CUTS DEEP IN THE HEART OF THEIR
COMPETITORS. IT ERECTS HIGH BARRIERS TO NE PLAYERS. New
players in order to equalize must build their refineries worth billions of pesos.
Those without refineries had to compete with a higher cost of 4%.They will be
competing on an uneven field.

The provision on inventory widens the advantage of PETRON, SHELL AND


CALTEX against prospective new players. The three (3) could easily comply with
the inventory requirement in view of their numerous storage facilities. Prospective
competitors again find compliance oft his requirement difficult because of
prohibitive cost in constructing new storage facilities. The net effect would be to
effectively prohibit the entrance of new players.

Now comes the prohibition on predatory pricing or selling or offering to sell any
product at a price unreasonably below the industry average cost so as to attract
customers to the detriment of the competitors. According to HOVENKAMP:

The rationale for predatory pricing is the sustaining of losses today that will
give a firm monopoly profits in the future. The monopoly profits will never
materialize, however, if the market is flooded with new entrants as soon as
the successful predator attempts to raise its price. Predatory pricing will be
profitable only if the market contains significant barriers to new entry.

Coupled with the 4% tariff differential and the inventory requirement, the
predatory pricing is a significant barrier which discourage new players to enter the
oil market thereby promoting unfair competition, monopoly and restraint of trade
which are prohibited by the Constitution.

2-d.LACSON VS. SANDIGANBAYAN, January 20, 1999


3. Taxicab Operators vs. BOT, September 30,l982
4. Bautista vs. Juinio,127 SCRA 329
5. Dumlao vs. COMELEC, 95 SCRA 392
6. Villegas vs. Hiu, 86 SCRA 270
7. Ceniza vs. COMELEC, 95 SCRA 763
8. UNIDO vs. COMELEC, 104 SCRA 38
9. Nunez vs. Sandiganbayan, 111 SCRA 433(Read also the dissenting opinion of
Justice Makasiar
10. Sison vs. Ancheta, 130 SCRA 654
11. Citizens Surety vs. Puno, 119 SCRA 216
12. Peralta vs. COMELEC, 82 SCRA 30

13. Hawaiian-Phil. Co. vs. Asociacion, 151 SCRA 306


14. Ormoc Sugar Co. vs. Ormoc City, 22 SCRA 603
15. Flores vs. COMELEC, 184 SCRA 484

CHAPTER IV - THE SEARCH


AND SEIZURE PROVISION

Section 2. The right of the people to be secure in their persons,


houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to
be seized.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism


Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on
July 15, 2007 (This Law shall be automatically suspended one (1) month
before and two (2) months after the holding of any election)

Sec. 18. Period of detention without judicial warrant of arrest.- The


provisions of Article 125 of the Revised Penal Code, notwithstanding, any
police or law enforcement personnel, who, having been duly authorized
in writing by the Anti-Terrorism Council has taken custody of a person
charged with or suspected of the crime of terrorism or the crime of
conspiracy to commit terrorism shall, WITHOUT INCURRING ANY
CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF
DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES,
DELIVER SAID CHARGED OR SUSPECTED PERSON TO THE

PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF THREE (3)


DAYS counted from the moment said charged or suspected person has
been apprehended or arrested, detained, and taken into custody by the said
police, or law enforcement personnel: Provided, That the arrest of those
suspected of the crime of terrorism or conspiracy to commit terrorism
must result from the surveillance under Section 7 and examination of bank
deposits under Section 27 pf this Act.

The police or law enforcement personnel concerned shall, before detaining


the person suspected of the crime of terrorism, present him or her before
any judge at the latters residence or office nearest the place where the
arrest took place at any time of the day or night. It shall be the duty of the
judge, among other things, to ascertain the identity of the police or law
enforcement personnel and the person or persons they have arrested and
presented before him or her, to inquire of them the reasons why they have
arrested the person and determine by questioning and personal observation
whether or not the subject has been subjected to any physical, moral or
psychological torture by whom and why. The judge shall then submit a
written report of what he/she had observed when the subject was brought
before him to the proper court that has jurisdiction over the case of the
person thus arrested.

The judge shall forthwith submit his report within 3 calendar days from
the time the suspect was brought to his/her residence or office.

Immediately after taking custody of a person charged with or suspected of


the crime of terrorism or conspiracy to commit terrorism, the police or law
enforcement personnel shall notify in writing the judge of the court nearest
the place of apprehension or arrest; provided, That where the arrest is
made during Saturdays, Sundays, holidays or after office hours, the
written notice shall be served at the residence of the judge nearest the
place where the accused was arrested. The penalty of 10 years and 1 day to
12 years imprisonment shall be imposed upon the police or law
enforcement personnel who fails to notify any judge as provided in the
preceding paragraph.

Section 19. Period of Detention in the event of an actual or imminent


terrorist attack.- In the vent of an actual or imminent terrorist attack,,

suspects may not be detained for more than three days without the written
approval of a municipal, city, provincial or regional official of a Human
Rights Commission, or judge of the municipal, regional trial court, the
Sandiganbayan or a justice of the Court of Appeals nearest the place of
arrest. If the arrest is made during Saturdays, Sundays or holidays, or after
office hours, the arresting police of law enforcement personnel shall bring
the person thus arrested to the residence of any of the officials mentioned
above that is nearest the place where the accused was arrested. The
approval in writing of any of the said officials shall be secured by the
police or law enforcement personnel concerned within five days after the
date of the detention of the persons concerned; Provided, however, That
within three days after the detention the suspects whose connection with
the terror attack or threat is not established, shall be released immediately.
Section 26 provides that persons who have been charged with terrorism or
conspiracy to commit terrorism---even if they have been granted bail
because evidence of guilt is not strongcan be:

Detained under house arrest;

Restricted from traveling; and/or

Prohibited from using any cellular phones, computers, or other means of communications
with people outside their residence.

Section 39. Seizure and Sequestration.- The deposits and their outstanding
balances, placements, trust accounts, assets, and records in any bank or
financial institution, moneys, businesses, transportation and
communication equipment, supplies and other implements, and property
of whatever kind and nature belonging:

To any person charged with or suspected of the crime of terrorism or conspiracy to


commit terrorism;

to a judicially declared and outlawed terrorist organization or group of persons;

to a member of such judicially declared and outlawed organization, association or group


of persons,

-shall be seized, sequestered, and frozen in order to prevent their use,


transfer or conveyance for purposes that are inimical to the safety and
security of the people or injurious to the interest of the State.

The accused or suspect may withdraw such sums as are reasonably needed
by his family including the services of his counsel and his familys
medical needs upon approval of the court. He or she may also use any of
his property that is under seizure or sequestration or frozen because of
his/her indictment as a terrorist upon permission of the court for any
legitimate reason.

Section 40. The seized, sequestered and frozen bank depositsshall be


deemed property held in trust by the bank or financial institution and that
their use or disposition while the case is pending shall be subject to the
approval of the court before which the case or cases are pending.

Section 41. If the person suspected as terrorist is acquitted after


arraignment or his case dismissed before his arraignment by a competent
court, the seizureshall be lifted by the investigating body or the
competent court and restored to him without delay. The filing of an appeal
or motion for reconsideration shall not stay the release of said funds from
seizure, sequestration and freezing.

If convicted, said seized, sequestered and frozen assets shall automatically


forfeited in favor of the government.

Requisites of a valid search warrant

Read:

a. Essentials of a valid search warrant,145 SCRA 739

b. Validity of a search warrant and the admissibility of evidence obtained in


violation thereof.

c. The place to be searched as indicated in the warrant is controlling

PEOPLE VS. CA, 291 SCRA 400


Narvasa, CJ

In applying for a search warrant, the police officers had in their mind the
first four (4) separate apartment units at the rear of ABIGAIL VARIETY STORE
in Quezon City to be the subject of their search. The same was not, however, what
the Judge who issued the warrant had in mind, AND WAS NOT WHAT WAS
ULTIMATELY DESCRIBED IN THE SEARCH WARRANT. As such, any
evidence obtained from the place searched which is different from that indicated
in the search warrant is inadmissible in evidence for any purpose and in any
proceeding.

This is so because it is neither licit nor fair to allow police officers to


search a place different from that stated in the warrant on the claim that the place
actually searched---although not that specified in the search warrant---is exactly
what they had in view when they applied for the warrant and had demarcated in
their supporting evidence. WHAT IS MATERIAL IN DETERMINING THE
VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT
ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS, OR
HAD REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT
ISSUING THE WARRANT. As such, it was not just a case of obvious
typographical error, but a clear case of a search of a place different from that
clearly and without ambiguity identified in the search warrant.

NOTE: Very Important: Where a search warrant is issued by one court and
the criminal action base don the results of the search is afterwards commenced in
another court, IT IS NOT THE RULE THAT A MOTION TO QUASH THE
WARRANT (or to retrieve the things seized) MAY BE FILED ONLY IN THE

ISSUING COURT---SUCH A MOTION MAY BE FILED FOR THE FIRST


TIME IN EITHER THE ISSUING COURT OR THAT IN WHICH THE
CRIMINAL PROCEEDING IS PENDING.

d. Validity of a warrantless search and seizure as a result of an informers tip.


Note the two (2) conflicting decisions of the Supreme Court.

PEOPLE VS. ARUTA, 288 SCRA 626

On December 13, 1988, P/Lt. Abello of the Olongapo PNP was tipped off
by an informer that Aling Rosa would be arriving from Baguio City the following
day with a large volume of marijuana. As a result of the tip, the policemen waited
for a Victory Bus from Baguio City near the PNB Olongapo, near Rizal Ave.
When the accused got off, she was pointed to by the informer. She was carrying a
traveling bag at that time. She was not acting suspiciously. She was arrested
without a warrant.

The bag allegedly contained 8.5 kilos of marijuana. After trial, she was
convicted and imposed a penalty of life imprisonment.

Issue:

Whether or not the marijuana allegedly taken from the accused is


admissible in evidence.

Held:

Warrantless search is allowed in the following instances:

1. customs searches;
2. searches of moving vehicle;
3. seizure of evidence in plain view;
4. consented searches;
5. search incidental to a lawful arrest; and
6. stop and frisk measures.

The above exceptions to the requirement of a search warrant, however,


should not become unbridled licenses for law enforcement officers to trample
upon the conditionally guaranteed and more fundamental right of persons against
unreasonable search and seizures. The essential requisite of probable cause must
still be satisfied before a warrantless search and seizure can be lawfully
conducted. In order that the information received by the police officers may be
sufficient to be the basis of probable cause, it must be based on reasonable ground
of suspicion or belief a crime has been committed or is about to be committed.

The marijuana obtained as a result of a warrantless search is inadmissible


as evidence for the following reasons:

1. the policemen had sufficient time to apply for a search warrant but they failed to do so;
2. the accused was not acting suspiciously;
3. the accuseds identity was previously ascertained so applying for a warrant should have
been easy;
4. the accused in this case was searched while innocently crossing a street

Consequently, there was no legal basis for the police to effect a


warrantless search of the accuseds bag, there being no probable cause and the
accuseds not having been legally arrested. The arrest was made only after the
accused was pointed to by the informant at a time when she was not doing

anything suspicious. The arresting officers do not have personal knowledge that
the accused was committing a crime at that time.

Since there was no valid warrantless arrest, it logically follows that the
subsequent search is similarly illegal, it being not incidental to a lawful arrest.
This is so because if a search is first undertaken, and an arrest effected based on
the evidence produced by the search, both such search and arrest would be
unlawful, for being contrary to law.

This case is similar tot he case of PEOPLE VS. AMINNUDIN, and


PEOPLE VS. ENCINADA.

PEOPLE VS. MONTILLA, 284 SCRA 703

On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the
Dasmarinas, Cavite PNP were informed by an INFORMER that a drug courier
would be arriving in Barangay Salitran, Dasmarinas, Cavite, from Baguio City,
with an undetermined amount of marijuana. The informer likewise informed them
that he could recognize said person.

At about 4 in the morning of June 20, 1994, the appellant was arrested by the
above-named police officers while alighting from a passenger jeepney near a
waiting shed in Salitran, Dasmarinas, Cavite, upon being pointed to by the
informer. The policemen recovered 28 kilos of dried marijuana leaves. The arrest
was without warrant.

The trial court convicted the appellant for transporting marijuana based on the
testimonies of the Above-named police officers without presenting the alleged
informer.

Issue:

Was the warrantless arrest valid?

Held:

The accused claims that the warrantless search and seizure is illegal because the
alleged information was received by the police on June 19, 1994 and therefore,
they could have applied for a search warrant. The said contention is without merit
considering that the information given by the informer is too sketchy and not
detailed enough for the obtention of the corresponding arrest or search warrant.
While there is indication that the informer knows the courier, the records do not
show that he knew his name. On bare information, the police could not have
secured a warrant from a judge.

Furthermore, warrantless search is allowed in the following instances:

1. customs searches;
2. searches of moving vehicle;
3. seizure of evidence in plain view;
4. consented searches;
5. search incidental to a lawful arrest; and
6. stop and frisk measures.

Since the accused was arrested for transporting marijuana, the subsequent
search on his person is justified. An arresting officer has the right to validly search
and seize from the offender (1) dangerous weapons; and (2) those that may be
used as proof of the commission of the offense.

In the case at bar, upon being pointed to by the informer as the drug
courier, the policemen requested the accused to open and show them the contents

of his bag and the cartoon he was carrying and he voluntarily opened the same
and upon cursory inspection, it was found out that it contains marijuana. Hence
the arrest.

The accused insists that it is normal for a person traveling with a bag and
cartoon which should not elicit the slightest suspicion that he was committing a
crime. In short, there was no probable cause for this policemen to think that he
was committing a crime.

The said contention was considered without merit by the Supreme Court
considering the fact that he consented to the search as well as the fact that the
informer was a reliable one who had supplied similar information to the police in
the past which proved positive.

(NOTE: The SC held that the non-presentation of the informer does not
affect the case for the prosecution because he is not even the best witness. He is
merely a corroborative witness to the arresting officers. )

JUSTICE PANGANIBAN:

To say that reliable tips from informers constitute probable cause for a
warrantless arrest or search IS A DANGEROUS PRECEDENT AND PLACES IN
GREAT JEOPARDY THE DOCTRINES LAID DOWN IN MANY DECISIONS
MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA 1; PEOPLE VS.
AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA, October 2, 1997;
PEOPLE VS. MENGOTE, 220 SCRA).

The case is similar to the case of People vs. Encimada where the appellant
was searched without a warrant while disembarking from a ship on the strength of
a tip from an informer received by the police the previous afternoon that the
appellant would be transporting prohibited drugs. The search yielded a plastic
package containing marijuana. On Appeal, the SC reversed the decision of
conviction and held that Encinada did not manifest any suspicious behavior that
would necessarily and reasonably invite the attention of the police.

Warrantless Arrest, search and seizure in buy-bust operations.

PEOPLE OF THE PHILIPPINES VS. SPO3 SANGKI ARA, et


al., G.R. No. 185011, December 23, 2009
VELASCO, JR., J.:
This is an appeal from the December 13, 2007 Decision of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 00025B entitled People of the Philippines v. SPO3 Sangki
Ara y Mirasol, Mike Talib y Mama, Jordan Musa y Bayan, which affirmed the Decision
of the Regional Trial Court (RTC), Branch 9 in Davao City, convicting accusedappellants of violation of Republic Act No. (RA) 9165 or the Comprehensive Dangerous
Drugs Act of 2002.
The Facts
Criminal Case No. 51,471-2002 against Ara

That on or about December 20, 2002, in the City of Davao, Philippines


and within the jurisdiction of this Honorable Court, the above-named
accused, without being authorized by law, willfully, unlawfully and
consciously traded, transported and delivered 26.6563 grams of
Methamphetamine Hydrochloride or shabu, which is a dangerous drug,
with the aggravating circumstance of trading, transporting and delivering
said 26.6563 grams of shabu within 100 meters from [the] school St.
Peters College of Toril, Davao City.

CONTRARY TO LAW.
During their arraignment, accused-appellants all gave a not guilty plea.
Version of the Prosecution
In the morning of December 20, 2002, a confidential informant (CI) came to the
Heinous Crime Investigation Section (HCIS) of the Davao City Police Department and
reported that three (3) suspected drug pushers had contacted him for a deal involving six
(6) plastic sachets of shabu. He was instructed to go that same morning to St. Peters
College at Toril, Davao City and look for an orange Nissan Sentra car.

Police Chief Inspector Fulgencio Pavo, Sr. immediately formed a buy-bust team
composed of SPO3 Reynaldo Capute, SPO4 Mario Galendez, SPO3 Antonio Balolong,
SPO2 Arturo Lascaos, SPO2 Jim Tan, SPO1 Rizalino Aquino, SPO1 Bienvenido Furog,
PO2 Vivencio Jumawan, Jr., PO2 Ronald Lao, and PO1 Enrique Ayao, Jr., who would act
as poseur-buyer.
The team proceeded to the school where PO1 Ayao and the CI waited by the gate.
At around 8:45 a.m., an orange Nissan Sentra bearing plate number UGR 510 stopped in
front of them. The two men approached the vehicle and the CI talked briefly with an old
man in the front seat. PO1 Ayao was then told to get in the back seat as accusedappellant Mike Talib opened the door. The old man, later identified as accused-appellant
SPO3 Ara, asked PO1 Ayao if he had the money and the latter replied in the positive. Ara
took out several sachets with crystalline granules from his pocket and handed them to
PO1 Ayao, who thereupon gave the pre-arranged signal of opening the car door. The
driver of the car, later identified as accused-appellant Jordan Musa, tried to drive away
but PO1 Ayao was able to switch off the car engine in time. The back-up team appeared
and SPO1 Furog held on to Musa while PO2 Lao restrained Talib. PO1 Ayao then asked
Ara to get out of the vehicle.
Recovered from the group were plastic sachets of white crystalline substance: six
(6) big sachets, weighing 26.6563 grams, from Ara by PO1 Ayao; five (5) big sachets,
weighing 14.2936 grams, from Musa by SPO1 Furog; and a small sachet, weighing
0.3559 gram, from Talib by PO2 Lao.
The three suspects were brought to the HCIS and the seized items indorsed to the
Philippine National Police (PNP) Crime Laboratory for examination. Forensic Chemist
Austero, who conducted the examination, found that the confiscated sachets all tested
positive for shabu.
Version of the Defense
The defense offered the sole testimony of Ara, who said that he had been a member
of the PNP for 32 years, with a spotless record. On December 20, 2002, SPO3 Ara was
in Cotabato City, at the house of his daughter Marilyn, wife of his co-accused Musa. He
was set to go that day to the Ombudsmans Davao City office for some paperwork in
preparation for his retirement on July 8, 2003. He recounted expecting at least PhP 1.6
million in retirement benefits. Early that morning, past three oclock, he and Musa
headed for Davao City on board the latters car. As he was feeling weak, Ara slept in the
back seat.
Upon reaching Davao City, he was surprised to see another man, Mike Talib, in
the front seat of the car when he woke up. Musa explained that Talib had hitched a ride
on a bridge they had passed.
When they arrived in Toril, Ara noticed the car to be overheating, so they stopped.
Ara did not know that they were near St. Peters College since he was not familiar with
the area. Talib alighted from the car and Ara transferred to the front seat. While Talib was

getting into the back seat, PO1 Ayao came out of nowhere, pointed his .45 caliber pistol
at Ara even if he was not doing anything, and ordered him to get off the vehicle. He saw
that guns were also pointed at his companions. As the group were being arrested, he told
PO1 Ayao that he was also a police officer. Ara insisted that he was not holding anything
and that the shabu taken from him was planted. He asserted that the only time he saw
shabu was on television.
The Ruling of the Trial Court
The dispositive portion of the RTC Decision reads:
WHEREFORE, premised on the foregoing the Court finds the
following:

In Criminal Case No. 51,471-2002, the accused herein SANGKI


ARA Y MASOL, Filipino, 55 years old, widower, a resident of
Kabuntalan, Cotabato City, is hereby found GUILTY beyond reasonable
doubt, and is CONVICTED of the crime of violation of Sec. 5, 1st
paragraph of Republic Act 9165. He is hereby imposed the DEATH
PENALTY and FINE of TEN MILLION PESOS (PhP 10,000,000) with
all the accessory penalties corresponding thereto, including absolute
perpetual disqualification from any public office, in view of the provision
of section 28 of RA 9165 quoted above.

Since the prosecution proved beyond reasonable doubt that the


crime was committed in the area which is only five (5) to six (6) meters
away from the school, the provision of section 5 paragraph 3 Article II of
RA 9165 was applied in the imposition of the maximum penalty against
the herein accused.

In Criminal Case No. 51,472-2002, the accused herein MIKE


TALIB y MAMA, Filipino, of legal age, single and a resident of Parang,
Cotabato, is found GUILTY beyond reasonable doubt, and is
CONVICTED of the crime of violation of Sec. 11, 3rd paragraph, Article
II of Republic Act 9165. He is hereby imposed a penalty of Imprisonment
of SIXTEEN (16) YEARS and a fine of THREE HUNDRED
THOUSAND PESOS (PhP 300,000) with all the accessory penalties
corresponding thereto.

In Criminal Case No. 51,473-2002 the accused herein JORDAN


MUSA Y BAYAN, Filipino, 30 years old, married and a resident of
Cotabato City, is hereby found GUILTY beyond reasonable doubt and is
CONVICTED of the crime for Violation of Sec. 11, 1st paragraph, Article
II of Republic Act No. 9165. He is hereby sentenced to suffer a penalty of
LIFE IMPRISONMENT and FINE of FOUR HUNDRED THOUSAND
PESOS (PhP 400,000) with all the accessory penalties corresponding
thereto.

SO ORDERED.
As the death penalty was imposed on Ara, the case went on automatic review
before this Court. Conformably with People v. Mateo, we, however, ordered the transfer
of the case to the CA.
The Issue
Whether the Court of Appeals erred in holding that the arrest of the
accused-appellants was valid based on the affidavits of the complaining
witnesses
Warrantless Arrest and Seizure Valid
In calling for their acquittal, accused-appellants decry their arrest without probable
cause and the violation of their constitutional rights. They claim that the buy-bust team
had more than a month to apply for an arrest warrant yet failed to do so.
Owing to the special circumstances surrounding the drug trade, a buy-bust
operation has long been held as a legitimate method of catching offenders. It is a form of
entrapment employed as an effective way of apprehending a criminal in the act of
commission of an offense. We have ruled that a buy-bust operation can be carried out
after a long period of planning. The period of planning for such operation cannot be
dictated to the police authorities who are to undertake such operation. It is unavailing
then to argue that the operatives had to first secure a warrant of arrest given that the
objective of the operation was to apprehend the accused-appellants in flagrante delicto.
In fact, one of the situations covered by a lawful warrantless arrest under Section 5(a),
Rule 113 of the Rules of Court is when a person has committed, is actually committing,
or is attempting to commit an offense in the presence of a peace officer or private person.
It is erroneous as well to argue that there was no probable cause to arrest accusedappellants. Probable cause, in warrantless searches, must only be based on reasonable
ground of suspicion or belief that a crime has been committed or is about to be
committed. There is no hard and fast rule or fixed formula for determining probable
cause, for its determination varies according to the facts of each case. Probable cause was

provided by information gathered from the CI and from accused-appellants themselves


when they instructed PO1 Ayao to enter their vehicle and begin the transaction. The
illegal sale of shabu inside accused-appellants vehicle was afterwards clearly
established. Thus, as we have previously held, the arresting officers were justified in
making the arrests as accused-appellants had just committed a crime when Ara sold
shabu to PO1 Ayao. Talib and Musa were also frisked for contraband as it may be
logically inferred that they were also part of Aras drug activities inside the vehicle. This
inference was further strengthened by Musas attempt to drive the vehicle away and elude
arrest.
Moreover, the trial court correctly denied the Motion to Suppress or Exclude
Evidence. We need not reiterate that the evidence was not excluded since the buy-bust
operation was shown to be a legitimate form of entrapment. The pieces of evidence thus
seized therein were admissible. As the appellate court noted, it was within legal bounds
and no anomaly was found in the conduct of the buy-bust operation. There is, therefore,
no basis for the assertion that the trial courts order denying said motion was biased and
committed with grave abuse of discretion.

ELI LUI, ET AL. VS. MATILLANO, May 27, 2004


Right against unreasonable searches and seizures; Mission Order does not
authorize an illegal search. Waiver of the right against an unreasonable search and
seizure.

In search of the allegedly missing amount of P45,000.00 owned by the employer,


the residence of a relative of the suspect was forcibly open by the authorities by
kicking the kitchen door to gain entry into the house. Thereafter, they confiscated
different personal properties therein which were allegedly part of those stolen
from the employer. They were in possession of a mission order but later on
claimed that the owner of the house gave his consent to the warrantless search.
Are the things admissible in evidence? Can they be sued for damages as a result
of the said warrantless search and seizure?

Held:

The right against unreasonable searches and seizures is a personal right which
may be waived expressly or impliedly. BUT A WAIVER BY IMPLICATION
CANNOT BE PRESUMED. There must be clear and convincing evidence of an
actual intention to relinquish the right. There must be proof of the following:

1. that the right exists;


2. that the person involved had knowledge, either constructive or actual, of the
existence of said right;
3. that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and intelligently


in order that the said is to be valid.

The search was therefore held illegal and the members of the searching party held
liable for damages in accordance with the doctrine laid down in Lim vs. Ponce de
Leon and MHP Garments vs. CA.

e. General or roving warrants

Read:

1. Stonehill vs. Diokno,June 19,1967

Concepcion, C.J.

The petitioners are questioning the validity of a total of 42 search warrants issued
on different dates against them and the corporations in which they are officers,
directing the peace officer to search the persons above-named and/or the premises

of their offices, warehouses and to seize and take possession of the following
personal property, to wit:

"Books of accounts, financial records, vouchers, correspondence, receipts,


ledgers, journals, typewriters and other documents or papers showing all business
transactions including disbursement receipts, balance sheets and profit and loss
statements"

since they are the subject of the offense of violating the CENTRAL BANK
LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL REVENUE CODE AND
THE REVISED PENAL CODE.

The petitioners claim that the search warrants are void being violative of the
Constitutional provision on search and seizure on the ground that:

a. The search warrants did not particularly describe the documents, books and
things to be seized;

b. cash money not mentioned in the warrant were actually seized;

c. The warrants were issued to fish evidence in the deportation cases against them;

d. the searches and seizures were made in an illegal manner;

e. the things seized were not delivered to the court to be disposed of in a manner
provided for by law.

Issue:
Were the searches and seizures made in the offices and residences of the
petitioners valid?

a. As to the searches made on their offices, they could not question the same in
their personal capacities because the corporations have a personality separate and
distinct with its officers. An objection to an unlawful search and seizure IS
PURELY PERSONAL AND CANNOT BE AVAILED OF BY THIRD PARTIES.
CONSEQUENTLY, THE PETITIONERS 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, TO WHOM THE SEIZED EFFECTS BELONG, AND MAY
NOT BE INVOKED BY THE CORPORATE OFFICERS IN PROCEEDINGS
AGAINST THEM IN THEIR INDIVIDUAL CAPACITY.

b. As to the documents seized in the residences of the petitioners, the same may
not be used in evidence against them because the warrants issued were in the
nature of a general warrant for failure to comply with the constitutional
requirement that:

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.
They were issued upon applications stating that the natural and juridical persons
therein named had committed a violation of Central bank Laws, Tariff and
Customs Laws, Internal revenue Code and Revised Penal Code. IN OTHER
WORDS, NO SPECIFIC OFFENSE HAD BEEN ALLEGED IN SAID
APPLICATIONS. THE AVERMENTS THEREOF WITH RESPECT TO THE
OFFENSE COMMITTED WERE ABSTRACT. AS A CONSEQUENCE, IT
WAS IMPOSSIBLE FOR THE JUDGE 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.

2. Bache vs. Ruiz, 37 SCRA 823


3. Secretary vs. Marcos, 76 SCRA 301
4. Castro vs. Pabalan, April 30,l976
5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for estafa,
falsification, tax evasion and insurance fraud is a general warrant and therefore
not valid)
6. Collector vs. Villaluz, June 18,1976
7. Viduya vs. Verdiago, 73 SCRA 553
8. Dizon vs. Castro, April 12, 1985
9. People vs. Veloso, 48 Phil. 169
10. TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101. A
SCATTER-SHOT WARRANT is a search warrant issued for more than one specific
offense like one for estafa, robbery, theft and qualified theft)

f. Define probable cause. Who determines probable cause?

1. ROBERTS VS. CA, 254 SCRA 307


2. DE LOS SANTOS VS. MONTESA, 247 SCRA 85

VICENTE LIM,SR. AND MAYOR SUSANA LIM


VS.HON. N. FELIX (G.R. NO. 99054-57)

EN BANC

GUTIERREZ, JR. J.

Facts:
--------

Petitioners are suspects of the slaying of Congressman Moises Espinosa, Sr. and
three of his security escorts and the wounding of another. They were initially
charged, with three others, with the crime of multiple murder with frustrated
murder. After conducting a preliminary investigation, a warrant of arrest was
issued on July 31, 1989. Bail was fixed at P200,000.

On September 22, 1989, Fiscal Alfane, designated to review the case, issued a
Resolution affirming the finding of a prima facie case against the petitioners but
ruled that a case of Murder for each of the killing of the four victims and a
physical injuries case for inflicting gunshot wound on the survivor be filled
instead against the suspects. Thereafter, four separate informations to that effect
were filed with the RTC of Masbate with no bail recommended.

On November 21, 1989, a motion for change of venue, filed by the petitioners
was granted by the SC. It ordered that the case may be transferred from the RTC
of Masbate to the RTC of Makati.

Petitioners then moved that another hearing ba conducted to determine if there


really exists a prima facie case against them in the light of documents showing
recantations of some witnesses in the preliminary investigation. They likewise
filed a motion to order the transmittal of initial records of the preliminary
investigation conducted by the municipal judge of Barsaga of Masbate. These
motions were however denied by the court because the prosecution had declared
the existence of probable cause, informations were complete in form in

substance , and there was no defect on its face. Hence it found it just and proper to
rely on the prosecutors certification in each information.

ISSUE:
----------

Whether or not a judge may issue a warrant of arrest without bail by simply
relying on the prosecutions certification and recommendation that a probable
cause exists?

Held:
-----

1. The judge committed a grave abuse of discretion.

In the case of Placer vs. Villanueva, the sc ruled that a judge may rely upon the
fiscal's certification of the existence of a probable cause and on the basis thereof,
issue a warrant of arrest. However, the certification does not bind the judge to
come out with the warrant of arrest. This decision interpreted the "search and
seizure" provision of the 1973 Constitution. Under this provision, the judge must
satisfy himself of the existence of probable cause before issuing a warrant of
order of arrest. If on the face of information, the judge finds no probable cause, he
may disregard the fiscal's certification and require the submission of the affidavits
of witness to aid him at arriving at a conclusion as to the existence of a probable
cause. This has been the rule since U.S vs. Ocampo and Amarga vs. Abbas.

2. In the case of Soliven vs. Makasiar, decided under the 1987 Constitution, the
Court noted that 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 respondent officers as to may be authorized by law does not
require the judge to personally examine the complainant and his witness in his
determination of probable cause for the issuance of a warrant of arrest.What the

Constitution underscores is the exclusive and personal responsibility of the


issuing judge to satisfy himself of the existence of probable cause. Following
established doctrine and procedures, he shall:

(1) personally evaluate the reports and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest;

(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.

3. The case of People vs. Honorable Enrique B. Inting reiterates the following
doctrines:

(1) The determination of probable cause is a function of the judge. It is not for the
Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only
the judge alone makes this detemination.

(2) The preliminary inquiry made by the prosecutor does not bind the judge. It
merely assist him to make the determination of probable cause. The judge does
not have to follow what the prosecutor's present to him. By itself, the prosecutor's
certification of probable cause is ineffectual. It is the report, the affidavits, the
transcripts of stenographic notes, and all other supporting documents behind the
prosecutor's certification which are material in assisting the judge to make his
determination.

(3) Preliminary inquiry should be distinguished from the preliminary investigation


proper. While the former seeks to determine probable cause for the issuance of
warrant of arrest, the latter ascertains whether the offender should be held for trial
or be released.

4. In the case of Castillo vs. Villaluz, the court ruled that judges of RTC no longer
have authority to conduct preliminary investigations: This authority was removed
from them by the 1985 Rules on Criminal Procedure, effective on January 1,
1985.

5. In the present case, the respondent judge relies solely on the certification of the
prosecutor. Considering that all the records of the investigation are in Masbate, he
has not personally determined the existence of probable cause. The determination
was made by the provincial prosecutor. The constitutional requirement had not
been satisfied.

The records of the preliminary investigation conducted by the Municipal Court of


Masbate and reviewed by the respondent Fiscal were still in Masbate when the
respondent Fiscal issued the warrant of arrest against the petitioners. There was no
basis for the respondent judge to make his personal determination regarding the
existence of probable cause from the issuance of warrant of arrest as mandated by
the Constitution. He could not have possibly known what has transpired in
Masbate as he had nothing but a certification. Although the judge does not have to
personally examine the complainant and his witnesses (for the prosecutor can
perform the same functions as commissioner for taking of evidence) there should
be a report and necessary documents supporting the Fiscal's bare certification. All
of these should be before the judge.

1. Amarga vs. Abbas, 98 Phil. 739


1-a. 20th Century Fox vs. CA, 164 SCRA 655
1-b. Quintero vs. NBI, 162 SCRA 467
1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No. 83578,
March 16, 1989

SOLIVEN VS. MAKASIAR, 167 SCRA 393

The word personally after the word determined does not necessarily mean that
the judge should examine the complainant and his witnesses personally before

issuing the search warrant or warrant of arrest but the exclusive responsibility on
the part of said judge to satisfy himself of the existence of probable cause. As
such, there is no need to examine the complainant and his witnesses face to face.
It is sufficient if the judge is convinced of the existence of probable cause upon
reading the affidavits or deposition of the complainant and his witnesses.

1-e. Pendon vs. CA, Nov. 16, 1990


1-f. P. vs. Inting, July 25, 1990
1-g. Umil vs. Ramos, et al., July 9, 1990 with the Resolution of the Motion for
Reconsideration in November, 1991
1-h. Paderanga vs. Drilon, April 19, 1991
2. Department of Health vs. Sy Chi Siong, Inc., GR No. 85289, February 20, 1989
2-a. P. vs. Villanueva, 110 SCRA 465
2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the power to
determine probable insofar as the issuance of a warrant of arrest is concerned)
3. Tolentino vs. Villaluz,July 27,1987
4. Cruz vs. Gatan, 74 SCRA 226
5. Olaes vs. P., 155 SCRA 486
7. Geronimo vs. Ramos, 136 SCRA 435

JUAN PONCE ENRILE VS. JUDGE JAIME SALAZAR, ET AL., G.R.NO.


92163, June 5, 1990

Due process; right to bail; probable cause for the issuance of a warrant of arrest
(Note: This might be useful also in your Criminal Law)

Narvasa, J.

On February 27, 1990, Senator Juan Ponce Enrile was arrested by law
enforcement officers led by NBI Director Alfredo Lim on the strength of a
warrant of arrest issued by the respondent judge, HON. JAIME SALAZAR,
Regional trial Court, Branch 103, Quezon City in Criminal Case No. 90-10941.
The warrant was issued on an information signed and filed earlier in the day by
Senior State Prosecutor AURELIO TRAMPE charging Senator Enrile, the
spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of
rebellion with murder and multiple frustrated murder allegedly committed during
the period of the failed coup attempt from November 29 to December 10, 1990.
Senator Enrile was taken to and held overnight at the NBI Headquarters on Taft
Ave., Manila, WITHOUT BAIL, NONE HAVING BEEN RECOMMENDED IN
THE INFORMATION AND NONE FIXED IN THE WARRANT OF ARREST.

On February 28, 1990, petitioner through counsel filed a petition for Habeas
Corpus alleging that he was deprived of his constitutional rights in being, or
having been:

a. held to answer for a criminal offense which does not exist in the statute books;

b. charged with a criminal offense in an information for which no complaint was


initially filed or preliminary investigation was conducted, hence, he was denied
due process;

c. denied the right to bail; and

d. arrested or detained on the strength of warrant issued without the judge who
issued it first having personally determined the existence of probable cause.

HELD:

The parties' oral and written arguments presented the following options:

1. Abandon the Hernandez Doctrine and adopt the dissenting opinion of Justice
Montemayor that "rebellion cannot absorb more serious crimes";

2. Hold Hernandez Doctrine applicable only to offenses committed in furtherance,


or as necessary means for the commission, of rebellion, BUT NOT TO ACTS
COMMITTED IN THE COURSE OF A REBELLION WHICH ALSO
CONSTITUTE COMMON CRIMES OF GRAVE OR LESS GRAVE
CHARACTER;

3. Maintain Hernandez Doctrine as applying to make rebellion absorb all other


offenses committed in its course, whether or not necessary to its commission or in
furtherance thereof.

1. On the first option, 11 justices voted AGAINST abandoning Hernandez. Two


members felt that the doctrine should be re-examined. In view of the majority,
THE RULING REMAINS GOOD LAW, ITS SUBSTANTIVE AND LEGAL
BASES HAVE WITHSTOOD ALL SUBSEQUENT CHALLENGES AND NO
NEW ONES ARE PRESENTED HERE PERSUASIVE ENOUGH TO
WARRANT A COMPLETE REVERSAL. This is so because of the fact that the
incumbent President (exercising legislative powers under the 1986 Freedom
Constitution) repealed PD No. 942 which added a new provision of the Revised
Penal Code, particularly Art. 142-A which sought to nullify if not repealed the
Hernandez Doctrine. In thus acting, the President in effect by legislative fiat
reinstated the Hernandez as a binding doctrine with the effect of law. The Court
can do no less than accord it the same recognition, absent any sufficiently
powerful reason against so doing.

2. On the second option, the Supreme Court was unanimous in voting to reject the
same though four justices believe that the arguments in support thereof is not
entirely devoid of merit.

3. With the rejection of the first two options, the Hernandez Doctrine remains a
binding doctrine operating to prohibit the complexing of rebellion with any other

offense committed on the occasion thereof, either as a means necessary to its


commission or as unintended effect of an activity that constitutes rebellion.

On the issues raised by the petitioner:


a. By a vote of 11-3, the Court ruled that the information filed against the
petitioner does in fact charge an offense despite the objectionable phrasing that
would complex rebellion with murder and multiple frustrated murder, that
indictment is to be read as charging SIMPLE REBELLION. The petitioner's
contention that he was charged with a crime that does not exist in the statute
books, WHILE TECHNICALLY CORRECT SO FAR AS THE COURT RULED
THAT REBELLION MAY NOT BE COMPLEXED WITH OTHER OFFENSES
COMMITTED ON THE OCCASION THEREOF, MUST THEREFORE BE
DISMISSED AS A MERE FLIGHT OF RHETORIC. Read in the context of
Hernandez, the information does indeed charge the petitioner with a crime defined
and punished by the Revised Penal Code: SIMPLE REBELLION.

b. Was the petitioner charged without a complaint having been initially filed
and/or preliminary investigation conducted? The record shows that a complaint
for simple rebellion against petitioner was filed by the NBI Director and that
based on the strength of said complaint a preliminary investigation was conducted
by the respondent prosecutors culminating in the filing of the questioned
information. THERE IS NOTHING INHERENTLY IRREGULAR OR
CONTRARY TO LAW IN FILING AGAINST A RESPONDENT AN
INDUCTMENT FOR AN OFFENSE DIFFERENT FROM WHAT IS
CHARGED IN THE INITIATORY COMPLAINT, IF WARRANTED BY THE
EVIDENCE DEVELOPED DURING THE PRELIMINARY INVESTIGATION.

c. The petitioner claims that the warrant issued is void because it was issued
barely one hour and twenty minutes after the case was raffled to the respondent
judge which could hardly gave him sufficient time to personally go over the
voluminous records of the preliminary investigation. Also, the petitioner claims
that the respondent judge issued the warrant for his arrest without first personally
determining the existence of probable cause by examining under oath or
affirmation the complainant and his witnesses, in violation of Art. III, Section 2,
of the Constitution. This Court has already ruled that it is not unavoidable duty of
the judge to make such a personal examination, it being sufficient that he follows
established procedure by PERSONALLY EVALUATING THE REPORT AND
THE SUPPORTING DOCUMENT SUBMITTED BY THE PROSECUTOR.
MEREBY BECAUSE SAID RESPONDENT JUDGE HAD WHAT SOME

MIGHT CONSIDER ONLY A RELATIVELY BRIEF PERIOD WITHIN WHICH


TO COMPLY WITH THAT DUTY , GIVES NO REASON TO ASSUME THAT
HE HAD NOT, OR COULD NOT HAVE, SO COMPLIED; NOR DOES THAT
SINGLE CIRCUMSTANCE SUFFICE TO OVERCOME THE LEGAL
PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY
PERFORMED.

d. Petitioner also claims that he is denied of his constitutional right to bail. In the
light of the Court's affirmation of Hernandez as applicable to petitioner's case, and
of the logical and necessary corollary that the information against him should be
considered as charging only the crime of simple rebellion which is bailable before
conviction, THAT MUST NOW BE ACCEPTED AS A CORRECT
PROPOSITION.

NOTES:

This might be useful also in your Remedial Law.

Was a petition for Habeas Corpus before the Supreme Court the appropriate
vehicle for asserting a right to bail or vindicating its denial?

The Supreme Court held that the criminal case before the respondent judge is the
normal venue for invoking the petitioner's right to have provisional liberty
pending trial and judgment. The correct course was for the petitioner to invoke
that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail
per se or by reason of the weakness of the evidence against him. ONLY AFTER
THAT REMEDY WAS DENIED BY THE TRIAL COURT SHOULD THE
REVIEW JURISDICTION OF THE SUPREME COURT BE INVOKED, AND
EVEN THEN, NOT WITHOUT FIRST APPLYING TO THE COURT OF
APPEALS IF APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.

Even assuming that the petitioner's premise that the information charges a nonexistent crime would not excuse or justify his improper choice of remedies. Under

either hypothesis, the obvious recourse would have been a motion to quash
brought in the criminal action before the respondent judge.

g. Warrantless searches and seizures--when valid


or not. Is "Operation Kapkap" valid?

Read:

PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 scra 174

Warrantless search and


seizure

Cruz, J.

Facts|

1. On August 8, 1987, the Western Police District received a telephone call from
an informer that there were three suspicious-looking persons at the corner of Juan
Luna and North Bay Blvd., in Tondo, Manila;

2. When the surveilance team arrived therein, they saw the accused "looking from
side to side" and "holding his abdomen". They approched these persons and
identified themselves as policement that is why they tried to ran away because of
the other lawmen, they were unable to escape;

3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated from
the accused and several days later, an information for violation of PD 1866 was
filed against him;

4. After trial, Mengote was convicted of having violated PD 1866 and was
sentenced to suffer reclusion perpetua based on the alleged gun as the principal
evidence. Hence this automatic appeal.

Issue:

Was there a valid warrantless search and seizure?

Held:

There is no question that evidence obtained as a result of an illegal search or


seizure is inadmissible in any proceeding for any purpose. That is the absolute
prohibition of Article III, Section 3 [2], of the Constitution. This is the celebrated
exclusionary rule based on the justification given by Justice Learned Hand that
"only in case the prosecution, which itself controls the seizing officials, knows
that it cannot profit by their wrong will the wrong be repressed."

Section 5, Article 113 of the Rules of Court provides:

Sec. 5. Arrest without warrant; when lawful.- A peace officer or private person
may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

xxx

We have carefully examined the wording of this Rule and cannot see how we we
can agree with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee


from a penal institution when he was arrested. We therefore confine ourselves to
determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this
Section.

Par. (a) requires that the person be arrested (1) after he has committed or while he
is actually committing or is at least attempting to commit an offense, (2) in the
presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the
arrest in question, the accused-appellant was merely "looking from side to side"
and "holding his abdomen," according to the arresting officers themselves. There
was apparently no offense that had just been committed or was being actually
committed or at least being attempted by Mengote in thie presence.

The Solicitor General submits that the actual existence of an offense was not
necessary as long as Mengote's acts created a reasonable suspicion on the part of

the arresting officers and induced in them the belief that an offense had been
committed and that accused-appellant had committed it". The question is, What
offense? What offense could possibly have been suggested by a person "looking
from side to side" and "holding his abdomen" and in aplace not exactly forsaken.

These are certainly not sinister acts. And the setting of the arrest made them less
so, if at all. It might have been different if Mengote had been apprehended at an
unholy hour and in a place where he had no reason to be, like a darkened alley at
3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a
crowded street shortly after alighting from a passenger jeep with his
companion.He was not skulking in the shadows but walking in the clear light of
day. There was nothing clandestine about his being on that street at that busy hour
in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them
innoent, why hiseyes were darting from side to sideand he was holding his
abdomen. If they excited suspicion in the minds of the arresting officers, as the
prosecution suggests, it has nevertheless not been shown what their suspicion was
all about.

xxx

The case before us is different because there was nothing to support the arresting
officers' suspicion other than Mengote's darting eyes and his hand on his
abdomen. By no stretch of the imagination could it have been inferred from these
acts that an offense had just been committed, or was actually being committed, or
was at least being attempted in their presence.

This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402 where the Court
held that a warrantless arrest of the accused was unconstitutional. This was
effected while he was coming down the vessel, to all appearances no less innocent
than the other disembarking passengers. He had not committed nor was actually
committing or attempting to commit an offense in the presence of the arresting
officers. He was not even acting suspiciously. In short, there was no probable
cause that, as the prosecution incorrectly suggested, dispensed with the
constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also
not been satisfied. Theprosecution has not shown that at the time of Mengote's
arrest an offense had in fact been committed and that the arresting officers had
personal knowldge of facts indicating that Mengote had committed it. All they
had was hearsay information from the telephone caller, and about a crime that had
yet to bem committed.

xxx
Before these events, the peace officers had no knowledge even of Mengote's
identity, let alone the fact that he was involved in the robbery of Danganan's
house.

In the landmark case of People vs. Burgos, 144 SCRA 1, this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have
personalknowledge of that fact. The offense must also be committed in his
presence or within his view. (SAYO vs. CHIEF OF POLICE, 80 Phil. 859).

xxx

In arrests without a warrant under Section 6(b), however, it is not enough that
there is reasonable ground to believe that the person to be arrested has committed
a crime. A crime must in fact or actually have been committed first. That a crime
has actually been committed is an essential precondition. It is not enough to
suspect that a crime may have been committed. The fact of the commission of the
offense must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator..

This doctrine was affirmed in Alih vs. Castro, 151 SCRA 279, thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in
connection with a crime about to be committed, being committed, or just
committed, what was that crime? There is no allegation in the record of such a
falsification. Parenthetically, it may be observed that under the Revised Rule 113,
Section 5(b), the officer making the arrest must have personal knowledge of the
ground therefor as stressed in the recent case of People vs. Burgos.

It would be a sad day, indeed, if any person could be summarily arrested and
searched just because he is holding his abdomen, even if it be possibly because of
a stomach-ache, or if a peace officer could clamp handcuffs on any person with a
shifty look on suspicion that he may have committed a criminal act is actually
committing or attempting it. This simply cannot be done in a free society. This is
not a police state where order is exalted over liberty or, worse, personal malice on
the part ofthe arresting officer may be justified in the name of security.

xxx

The court feels that if the peace officers had been more mindful of the provisions
of the Bill of Rights, the prosecution of the accused-appellant might have
succeeded. As it happened, they allowed their over zealousness to get the better of
them, resulting in their disregard of the requirements of a valid search and seizure
that rendered inadmissible the evidence they had invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the
very cause of the acquittal of persons who deserve to be convicted, escaping the
clutches of the law, because, ironically enough, it has not been observed by those
who are supposed to enforce it.

When illegal arrest is deemed waived.

Warrantless arrest; no personal knowledge of the arresting officer

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

The policeman arrested the accused-appellant on the basis solely of what


Reynaldo Castro had told him and not because he saw the accused-appellant
commit the crime charged against him. Indeed, the prosecution admitted that there
was no warrant of arrest issued against accused-appellant when the latter was
taken into custody. Considering that the accused-appellant was not committing a
crime at the time he was arrested nor did the arresting officer have any personal
knowledge of facts indicating that accused-appellant committed a crime, his arrest
without a warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment, the accusedappellant waived his right to raise the issue of illegality of his arrest. IT IS NOW
SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE
PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE
PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS
PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT
THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE
SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS
RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE
CULPABILITY OF THE ACCUSED.

g-1. Warrantless Search and seizure by a private person. (Valid since the
constitutional provision is not applicable to him; when it is not valid)

Read:
1. PEOPLE VS. MENDOZA, 301 SCRA 66

Warrantless searches and seizures by private individuals

2. SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO SOLUTA,


ET AL., 482 SCRA 660

Carpio-Morales, J.

The petitioner suspects that the respondents who are officers of the Silahis
International Hotel Union were using the Union Office located inside the hotel in
the sale or use of marijuana, dollar smuggling, and prostitution. They arrived at
the said conclusion through surveillance.

In the morning of January 11, 1988, while the respondent union officer was
opening the Union Office, security officers of the plaintiff entered the union office
despite objections thereto by forcibly opening the same. Once inside the union
office they started to make searches which resulted in the confiscation of a plastic
bag of marijuana. An information for violation of the dangerous drugs act was
filed against the respondent before the RTC of Manila which acquitted them on
the ground that the search conducted was illegal since it was warrantless and
without consent by the respondents.

After their acquittal, the respondents filed a case for Malicious Prosecution
against the petitioner for violation of Art. 32 of the Civil Code. After trial, the
Regional Trial Court held that petitioners are liable for damages as a result of an
illegal search. The same was affirmed by the Court of Appeals.

Issue:

Whether the warrantless search conducted by the petitioners (private individual


and corporation) on the union office of the private respondents is valid.

Held:

The search is not valid and they are civilly liable under Art. 32 of the Civil Code.
The fact that the union office is part of the hotel owned by the petitioners does not
justify the warrantless search. The alleged reports that the said union office is
being used by the union officers for illegal activities does not justify their acts of
barging into the said office without the consent of the union officers and without a
search warrant. If indeed there was surveillance made, then they should have
applied for a search warrant.

The ruling in People vs. Andre Marti is not applicable here because in Marti, a
criminal case, the issue was whether an act of a private individual, allegedly in
violation of ones constitutional rights may be invoked against the State. In other
words, the issue in Marti is whether the evidence obtained by a private person
acting in his private capacity without the participation of the State, is admissible.

3. PEOPLE OF THE PHILIPPINES VS. ANDRE MARTI


G.R. NO. 81561, January 18, 1991

Warrantless Search and seizure


by a private person

Bidin, J.

FACTS:

Andre Marti and his common-law wife, Shirley Reyes went to Manila Packaging
and Export Forwarders to send four (4) packages to Zurich, Switzerland. Anita
Reyes, owner of the place (no relation to Shirley), received said goods and asked
if she could examine and inspect it. Marti refused. However later, following
standard operating procedure, Job Reyes, co-owner and husband of Anita opened

the boxes for final inspection, before delivering it to the Bureau of Customs
and/or Bureau of Posts.

Upon opening, a peculiar odor emanated from the box that was supposed to
contain gloves. Upon further perusal, he felt and saw a dried leaves inside the
box. Job Reyes then brought samples to the NBI, he told them that the boxes to be
shipped were still in his office. In the presence of the NBI agents, Reyes opened
the box and discovered that the odor came from the fact that the dried leaves were
actually those of the marijuana flowering tops.

Two other boxes,marked as containing books and tabacalera cigars; also revealed
bricks or case-like marijuana leaves and dried marijuana leaves respectively.

Marti was later invited by the NBI to shed light on the attempted shipment of the
dried leaves. Thereafter an information was filed against the appellant for
violating RA 6425 or the Dangerous Drugs Act. The Special Criminal Court of
Manila convicted accused Marti of violating sec.21(b) of said RA.

ISSUES:
1. Did the search conducted by a private person, violate accused's right against
unreasonable searches seizures and invocable against the state?

2. Was the evidence procured from the search admissible?

Held:
1. No, constitutional protection on search and seizure is imposable only against
the state and not to private persons.

Since Art. III,2 of the 1987 constitution is almost verbatim from the United States
constitution, the SC may consider US Fed. SC cases as likewise doctrinal in this

jurisdiction. Hence, in US cases, the constitutional provision against


unreasomable searches and seizure was intended as a restraint upon the activities
of the sovereign authority and NOT intended against private persons. If a search
was initiated by a private person the provision does not apply since it only
proscribes government action. This view is supported by the deliberations by the
1986 Constitutional Commission.

In short, the protection against unreasonable searches and seizures cannot be


extended to acts comitted by private individuals so as to bring it within the ambit
of alleged unlawful intrusion.

Case at bar will show that it was Job Reyes` initiative that perpetrated the search.
He opened the packages and took the samples to NBI. All the NBI agents did was
to observe and look in plain sight. This did not convert it to a search as
contemplated by the constitution.

2. Yes, since the search was valid, the evidence from therein is admissible
evidence.

Art.III [2], on the admissibility of evidence in violation of the right against


unreasonable searches and seizures, likewise applies only to the government and
its agencies and not to private persons.

(U.S. cases cited: Burdeau v. McDowell (256 us 465 [1921], state v. Bryan (457 p
2d 661 [1968], Walker v. state (429 s.w 2d 121 [1969]), Barnes v. us (373 F 2d
517 [1967]), Chadwick v. state (329 sw 2d 135).

VALID WARRANTLESS SEARCH AND SEIZURE:

1. Search made incidental to a valid arrest

1. Moreno vs. Ago Chi, 12 Phil. 439


2. PEOPLE VS. ANG CHUN KIT, 251 SCRA 660
3. PEOPLE VS. LUA, 256 SCRA 539
4. PEOPLE VS. Figueroa, 248 SCRA 679
5. NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid arrest must be
done at the place where the accused is arrested. As such, if accused was arrested while
inside a jeepney, there is no valid search incidental to a valid arrest if she will be brought
to her residence and thereafter search the said place)
6. ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the street during a buybust operation, the search of his house nearby is not a valid search incidental to a valid
arrest)

PEOPLE VS. GO, 354 SCRA 338


Where the gun tucked in a persons waist is plainly visible to the police, no search
warrant is necessary and in the absence of any license for said firearm, he may be
arrested at once as he is in effect committing a crime in the presence of the police
officers. No warrant is necessary in such a situation, it being one of the
recognized exceptions under the Rules.

As a consequence of the accuseds valid warrantless arrest inside the nightclub, he


may be lawfully searched for dangerous weapons or anything which may be used
as proof of the commission of an offense, without a search warrant in accordance
with Section 12, Rule 126. This is a valid search incidental to a lawful arrest.

In fact, the subsequent discovery in his car which was parked in a distant place
from where the illegal possession of firearm was committed [after he requested
that he will bring his car to the Police Station after his warrantless arrest) , of a
drug paraphernalia and shabu, CANNOT BE SAID TO HAVE BEEN MADE
DURING AN ILLEGAL SEARCH. As such, the items do not fall under the
exclusionary rule and the unlicensed firearms, drug paraphernalia and the shabu,
can be used as evidence against the accused.

2. Search of moving vehicles

1. P. VS. MARIACOS, G.R. No. 188611, June 16, 2010


2. Carrol vs. US, 267 US 132
3. PEOPLE VS. LO HO WING, et al.
(G. R. No. 88017) January 21, 1991
4. MUSTANG LUMBER VS. CA, 257 SCRA 430
5. PEOPLE VS. CFI, 101 SCRA 86
6. PEOPLE VS. MALMSTEDT198 SCRA 401

7. PEOPLE VS. LO HO WING, 193 SCRA 122

FACTS:

In July 1987, the Special Operations Group of the CIS received a tip from one of
its informers about an organized group engaged in importation of illegal drugs
and smuggling of contraband items. To infiltrate the crime syndicate, they
recruited confidential men and "deep penetration agents" under OPLAN
SHARON 887. One such agent was Reynaldo Tia (the dicharged/accused). As an
agent, he submitted regular reports of undercover activities of suspected
syndicates. CAPTAIN PALMERA, head of oplan sharon 887, in turned informed
the Dan
gerous Drugs Board of Tia's activities.

Tia was introduced to his co-accused Lim Cheng Huat by another agent named
George. Lim wanted a male travelling companion for his business trips abroad.
Tia offered his services and was hired by Lim. Later, Tia was introduced to Peter

Lo (alias of accused/appellant Lo Ho Wing), the later turning out to be Tia's


intended companion.

Appellant Lo Ho Wing and Tia left for Hongkong on October 4, 1987. Tia
telephoned Capt. Palmera that they would return to the Philippines on October 6.
From Hongkong, the two proceeded to Guangzhou in mainland China. There,
appeallant Lo Ho Wing bought six (6) cans of tea.Tia saw these 6 bags when they
were opened for examination. That evening, they went to Lo Ho Wing's room and
he saw two other men with him. One was fixing the tea bags, while the other was
burning a substance on a piece of aluminum foil using a lighter. Appellant Lo Ho
Wing joined the second man and sniffed the smoke emitted by the burning
substance. When Tia asked Lo Ho Wing what cargo they would bring to Manila,
the latter replied that they would be bringing Chinese drugs.

The next day en route to Manila, customs examiners inspected the bags
containing the tin cans of tea. Since the bags were not closely examined, appellant
Lo Ho Wing and Tia were cleared. In Manila, They were met by Lim Cheng Huat.
Appelant Lo Ho Wing and Tia boarded a taxi from the airport and loaded their
luggage in the taxi's compartment. Lim Cheng Huat followed them in another
taxi.

Meamwhile, a team composed by Capt. Palmera positioned themselves in


strategic areas around the airport. The CIS men who first saw Lo Ho and Tia
followed them. Along Imelda Avenue, the CIS car overtook the taxi ridden by Lo
Ho Wing and Tia , forcing the taxi driver to stop his vehicle. The CIS team asked
the taxi driver to open the baggage compartment. The CIS team asked permission
to search their luggage.

A tin can of tea was taken out of the compartment. Sgt. Cayabyab of the CIS pried
the lid open and pressed it in the middle to pull out the contents. Crystalline white
powder resmbling crushed alum came out. Suspecting the crystalline powder to be
a dangerous drug, he had the three travelling bags opened for inspection. All the
bags threshed out a total of six tin cans. Tia and appellant were taken to the CIS
headquarters for questioning. Meanwhile, the second taxi carrying Lim Cheng
Huat sped in attempt to escape. However, they were later captured.

Samples from the bag tested positive for metamphetamine. The three suspects
were indicted for violating Art. III, sec.15 of the Dangerous Drug Act. Appellant
Lo Ho Wing and Lim Cheng Huat were sentenced to suffer life imprisonment and
to pay a fine of P25,000 each. Reynaldo Tia was discharged as a state witness.
The trial court gave full credence to the testimonies of government agents since
the presumption of regularity in the performance of official duties were in their
favor.

ISSUES:
1. Was the warrantless search valid?
2. Are the effects taken admissible as evidence?

HELD:

1. This is a case of search on a moving vehicle which is one of the well-known


exceptions to the valid warrantless search and seizure. To stilol get a search
warrant from a judge would allow the accused go scot-free.

2. Since the search and seizure are valid, the evidence obtained is admissible as
evidence in any proceeding.

3. Seizure of goods concealed to avoid duties/taxes (Valid)

1. Papa vs. Mago, 22 SCRA 857


2. Pacis vs. Pamaran, 56 SCRA 16
3. HIZON VS. CA, 265 SCRA 517
4. PEOPLE VS. QUE, 265 SCRA 721

4. Seize of evidence in plain view

1. Harris vs. US, 390 US 234


2. PEOPLE VS. DAMASO, 212 SCRA 547
3. PEOPLE VS. VELOSO, 252 SCRA 135
4. PEOPLE VS. LESANGIN, 252 SCRA 213

5. When there is waiver of right or gives his consent;


1. De Garcia vs. Locsin, 65 Phil. 689
2. Lopez vs. Commissioner, 65 SCRA 336
3. PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid waiver to a
warrantless search, the waiver or consent should be given by the person affected, not just
anybody. Example: The landlady could not give a valid consent to the search of a room
occupied by a tenant. Said tenant himself should give the consent in order to be valid.
The doctrine in Lopez vs. Commissioner to the effect that it could be given by any
occupant of a hotel room being rented by the respondent is deemed abandoned)
4. VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house allowed the
policemen/soldiers to enter his house because they are searching for rebel soldiers but
once inside the house, they instead seized an unlicensed firearm,)

6. STOP AND FRISK.


1. People vs. Mengote, June, 1992
2. PEOPLE VS. POSADAS, 188 SCRA 288
3. MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several suspicious
looking men at dawn who ran when they went near them. As the policemen ran after
them, an unlicensed firearm was confiscated. The search is valid)
4. MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to validate
warrantless arrest)

6. EDDIE GUAZON, ET AL. VS. MAJ. GEN. RENATO DE VILLA, ET AL.,


GR NO. 80508, January 30, 1990

Warrantless searches;
"zonings" and "saturation drives"
Section 17, Art. VII of the Constitution

Gutierrez, Jr., J.

Facts:

This is a petition for Prohibition with preliminary injunction to prohibit military


and police officers from conducting "Areal target zonings" or "saturation drive" in
Metro Manila particularly in places where they suspect that the subversives are
hiding. The 41 petitioners claim that the saturation drives conducted by the
military is in violation of their human rights because with no specific target house
in mind, in the dead of the night or early morning hours, police and military
officers without any search warrant cordon an area of more than one residence
and sometimes the whole barangay. Most of them are in civilian clothes and w/o
nameplates or identification cards; that the raiders rudely rouse residents from
their sleep by banging on the walls and windows of their homes, shouting, kicking
their doors open (destroying some) and ordering the residents to come out; the
residents are herded like cows at the point of high powered guns, ordered to strip
down to their briefs and examined for tattoo marks; that while examination of the
bodies of the men are being conducted, the other military men conduct search and
seizures to each and every house without civilian witnesses from the neighbors;
some victims complained that their money and other valuables were lost as a
result of these illegal operations.

The respondents claim that they have legal authority to conduct saturation drives
under Art. VII, Sec. 17 of the Constitution which provides:

The respondents would want to justify said military operation on the following
constitutional provisions:

The President shall be the Commander-in-Chief of all the armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion x x x
xxxx

The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws are faithfully executed.

Held:

There can be no question that under ordinary circumstances, the police action of
the nature described by the petitioners would be illegal and blatantly violative of
the Bill of Rights. If the military wants to flush out subversive and criminal
elements, the same must be consistent with the constitutional and statutory rights
of the people. However, nowhere in the Constitution can we see a provision which
prohibits the Chief Executive from ordering the military to stop unabated
criminality, rising lawlessness and alarming communist activities. However, all
police actions are governed by the limitations of the Bill of Rights. The
government cannot adopt the same reprehensible methods of authoritarian
systems both of the right and of the left. This is so because Art. III, Section 3 of
the Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA 687
and Century Fox vs. Court of Appeals, 164 SCRA 655. Also, it must be pointed
out that police actions should not be characterized by methods that offend one's
sense of justice (Rochin vs. California, 342 US 165).

The Court believes it highly probable that some violations were actually
committed. But the remedy is not to stop all police actions, including the essential
and legitimate ones. A show of force is sometimes necessary as long as the rights
of people are protected and not violated. However, the remedy of the petitioners is
not an original action for prohibition since not one victim complains and not one

violator is properly charged. It is basically for the executive department and the
trial courts. The problem is appropriate for the Commission of Human Rights.

The petition was therefore remanded to the Regional Trial Courts of Manila,
Malabon and Pasay City where the petitioners may present evidence supporting
their allegations so that the erring parties may be pinpointed and prosecuted. In
the meantime, the acts violative of human rights alleged by the petitioners as
committed during the police actions are ENJOINED until such time as permanent
rules to govern such actions are promulgated.

********************

Cruz, Padilla and Sarmiento, JJ. , Dissenting


The ruling of the majority that the petitioners are not proper parties is a specious
pretext for inaction. We have held that technical objections may be brushed aside
where there are constitutional questions that must be met (RODRIGUEZ VS.
GELLA, 92 PHIL. 603; TOLENTINO VS. COMELEC, 41 SCRA 702;
PHILCONSA VS. JIMENEZ, 65 SCRA 479; EDU VS. ERICTA, 35 SCRA 481;
GONZALES VS. COMELEC, 27 SCRA 835; LAGUNZAD VS. CA, 154 SCRA
199; DEMETRIA VS. ALBA,148 SCRA 208). Lozada was in fact an aberration.

Where liberty is involved, every person is a proper party even if he may not be
directly injured. Each of us has a duty to protect liberty and that alone makes him
a proper party. It is not only the owner of a burning house who has the right to call
the firemen.

Section 2, Art. III of the constitution is very clear: Unreasonable searches and
seizures of whatever nature and for whatever purpose is prohibited.

Saturation drives are NOT AMONG THE ACCEPTED INSTANCES WHEN A


SEARCH OR AN ARREST MAY BE MADE WITHOUT A WARRANT. THEY
COME UNDER THE CONCEPT OF THE FISHING EXPEDITIONS
STIGMATIZED BY LAW AND DOCTRINE X X X I submit that this court

should instead categorically and emphatically that these saturation drives are
violative of human rights and individual liberty and should be stopped
immediately. While they may be allowed in the actual theater of military
operations against the insurgents, the Court should also make it clear that Metro
Manila is not such a battleground.

7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF


ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA.
MANOLITA UMIL and NICANOR DURAL, FELICITAS SESE VS. FIDEL
RAMOS, ET AL. and companion cases, G.R. No. 81567, July 9, 1990 (An NPA
may be arrested without warrant while sleeping or being treated in a hospital
because his being a communist rebel is a continuing crime)

h. If the judge finds that there's probable cause, must he issue a warrant of arrest
as a matter of course? See the distinctions.

Read:

1. SAmulde vs. Salvani, September 26, 1988 (No because a warrant is issued in order to
have jurisdiction of the court over the person of an accused and to assure the court of his
presence whenever his case is called in court. As such, if the court believes that the
presence of the accused could be had even without a warrant of arrest, then he may not
issue said warrant. Note: This case involves a minor offense)
2. GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed is a serious one like that
obtaining in this case for murder, the Judge must issue a warrant of arrest after
determining the existence of probable cause)
i. Searching questions

Read:

DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE


ABELARDO M. DAYRIT, RTC 33, Manila & People of the Philippines, GR
No. 82870, December 14, 1989 (En Banc)

Search and seizure; requirements/requisites of a valid search warrant; searching


questions

Padilla, J.
This is a petition to annul and set aside the Order of respondent Judge DENYING
the motion of the petitioner to quash Search Warrant No. 87-14 as well as its
Order denying the petitioner's Motion for Reconsideration.

Facts:
1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence
Special Action Division (ISAD) of the Western Police District (WPD) filed with
the Regional Trial Court of Manila, Branch 33, presided by the respondent Judge,
an application for the issuance of a Search Warrant for violation of PD 1866
against the petitioner;

2. In his application for search warrant, P/Major Dimagmaliw alleged that:

"1. That he has been informed and has good and sufficient reasons to believe that
NEMESIO PRUDENTE who may be found at the Polytechnic University of the
Philippines x x x has in his control or possession firearms, explosives, hand
grenades and ammunition intended to be used as the means of committing an
offense x x x;

"2. That the undersigned has verified the report and found it to be a fact x x x ".

In support of said application, P/Lt. Florencio Angeles executed a "Deposition of


Witness dated October 31, 1987 .

3. On November 1, 1987, a Sunday and All Saints Day, the search warrant was
enforced by some 200 WPD operatives led by Col. Edgar Dula Torre and Major
Maganto;

4. On November 2, 1987, Ricardo Abando, a member of the searching team


executed an affidavit alleging that he found in the drawer of a cabinet inside the
wash room of Dr. Prudente's office a bulging brown envelope with three live
fragmentation hand grenades separately with old newspapers;

5. On November 6, 1987, the petitioner moved to quash the search warrant on the
grounds that:

a. the complainant's lone witness, Lt. Angeles had no personal knowledge of the
facts which formed the basis for the issuance of the search warrant;

b. the examination of said witness was not in the form of searching questions and
answers;

c. the search warrant was a general warrant, for the reason that it did not
particularly describe the place to be searched and that it failed to charge one
specific offense; and

d. the warrant was issued in violation of Circular No. 19 of the Supreme Court in
that the complainant failed to allege that the issuance of the search warrant on a
Saturday was urgent.

6. On March 9, 1986, the respondent judge denied the motion to quash and on
April 20, 1988, the same judge denied petitioner's motion for reconsideration.
Hence this petition.

Issue:
Was the Search Warrant issued by the respondent judge valid? Was there probable
cause?

Held:
a. For a valid search warrant to issue, there must be probable cause, which is 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. The probable cause
must be in connection with one specific offense and 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 the witnesses he may
produce, on facts personally known to them and attach to the record their sworn
statements together with any affidavits submitted.

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 the objects sought in
connection with the offense are in the place sought to be searched". (Quintero vs.
NBI, June 23, 1988). 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. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64
PHIL. 33; US VS. ADDISON, 28 PHIL. 566).

In his affidavit, Major Dimagmaliw declared that "he has been informed" that
Nemesio Prudente "has in his control and possession" the firearms and
explosivees described therein, and that he "has verified the report and found it to
be a fact." On the other hand, Lt. Angeles declared that as a result of continuous
surveillance for several days, they "gathered informations from verified sources"
that the holders of said firearms and explosives are not licensed t possess them. It
is clear from the foregoing that the applicant and his witness HAD NO
PERSONAL KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES which

became the basis for issuing the questioned search warrant, but acquired
knowledge thereof only through information from other sources or persons.

Despite the fact that Major Dimagmaliw stated in his affidavit that "he verified
the information he had earlier received and found it to be a fact, YET THERE IS
NOTHING IN THE RECORD TO SHOW OR INDICATE HOW AND WHEN
SAID APPLICANT VERIFIED THE EARLIER INFORMATION ACQUIRED
BY HIM AS TO JUSTIFY HIS CONCLUSION. He might have clarified this
point if there had been searching questions and answers, but there were none. In
fact, the records yield no questions and answers, whether searching or not, vis-avis the said applicant.

In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test must be
complied with in an application for search warrant or in a supporting deposition
based on personal knowledge or not-

"The true test of sufficiency of a deposition or affidavit to warrant issuance of a


search warrant is whether it was drawn in a manner that perjury could be charged
thereon and the affiant be held liable for damage caused. The oath required must
refer to the truth of the facts within the personal knowledge of the applicant of a
search warrant and/or his witnesses, not of the facts merely reported by a person
whom one considers to be reliable."

Tested by the above standards, the allegation of the witness, Lt. Angeles, do not
come up to the level of facts based on his personal knowledge so much so that he
cannot be held liable for perjury for such allegations in causing the issuance of the
questioned search warrant.

Besides, respondent judge did not take the deposition of the applicant as required
by the Rules of Court. As held in Roan vs. Gonzales, 145 SCRA 694, "mere
affidavits of the complainant and his witnesses are thus insufficient. The
examining judge has to take the depositions in writing of the complainant and the
witnesses he may produce and attach them to the record."

b. There was also no searching questions asked by the respondent judge because
as shown by the record, his questions were too brief and short and did not
examine the complainant and his witnesses 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, June 23, 1988, "the
questions propounded 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 the issuance of a valid search warrant."

The Court avails of this decision to reiterate the strict requirements for
determination of probable cause in the valid issuance of a search warrant as
enunciated in earlier cases. True, this requirements are stringent but the purpose is
to assure that the constitutional right of the individual against unreasonable search
and seizure shall remain both meaningful and effective.

c. The rule is, that a description of a place to be searched is sufficient if the officer
with the warrant can with reasonable effort ascertain and identify the place
intended (P VS. VELOSO, 48 PHIL. 180). In the case at bar, the warrant
described the place to be searched as the premises of the PUP, more particularly
the offices of the Department of Science and Tactics as well as the Office of the
President, Nemesio Prudente.

There is also no violation of the "one specific offense" requirement considering


that the application for a search warrant explicitly described the offense: illegal
possession of firearms and ammunitions under PD 1866.

d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for a


guideline, departure from which would not necessarily affect the validity of the
search warrant provided the constitutional requirements are complied with.

1. HUBERT WEBB VS. DE LEON, 247 SCRA 650

Read also:

1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his knowledge from
an informant, the same is not valid)
2. Luna vs. Plaza, 26 SCRA 313
3. De Mulata vs. Irizari, 62 SCRA 210
4. Marinas vs. Siochi, 104 SCRA 423
5. Roan vs. Gonzales, 145 687
6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants and witnesses
should be attached to the record of the case)
7. Corro vs. Lising, 137 SCRA 541
8. Nolasco vs Pano, 147 SCRA 509
9. Burgos vs. Chief of Staff, 133 SCRA 800
10. P. vs. Burgos, September 14,1986
11. P. vs. Aminnudin Y Ahni, July 6,1988
12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the affidavits of
witnesses are mere generalities, mere conclusions of law, and not positive
statements of particular acts, the warrant is not valid)
13. Aberca vs. Ver, April 15,1988
2. Panganiban vs. Cesar, 159 SCRA 599
3. PENDON VS. CA, November 16, 1990. (When the questions asked to the applicant for a
search warrant was pre-typed, the same is not valid since there could have been no
searching questions)

j. Warrantless searches and seizures--when valid


or not.

Read:

1. RICARDO VALMONTE VS. GEN RENATO DE VILLA, GR No. 83988,


September 29, 1989

Warrantless searches and seizures;


validity of checkpoints

Padilla, J.

Facts:
1. On January 20, 1987, the National Capital Region District Command
(NCRDC) was activated with the mission of conducting security operations
within its area of responsibility for the purpose of maintaining peace and order. As
part of its duty to maintain peace and order, the NCRDC installed checkpoints in
various parts of Valenzuela, Metro Manila.

Petitioners claim that because of these checkpoints, the residents of Valenzuela,


MM are worried of being harassed and of their safety being placed at the
arbitrary, capricious and whimsical disposition of the military authorities manning
the checkpoints considering that their cars and vehicles are being subjected to
regular searches and check-ups, especially at night or dawn, without the benefit of
a search warrant and/or court order.

2. On July 9, 1988 at dawn, the apprehensions of the residents of Valenzuela


increased because Benjamin Parpon, the supply officer of the Municipality of
Valenzuela was gunned down in cold blood by the military men manning the
checkpoints for ignoring or refusing to submit himself to the checkpoint and for
continuing to speed off inspite of several warning shots fired in the air.

Issue:
Whether or not the existence of said checkpoints as well as the periodic searches
and seizures made by the military authorities without search warrant valid?

Held:
Petitioners' concern for their safety and apprehension at being harassed by the
military manning the checkpoints are not sufficient grounds to declare the
checkpoints as per se illegal.

Not all searches and seizures are prohibited. Those which are reasonable are not
forbidden. A reasonable search is not to be determined by any fixed formula but is
to be resolved according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle
which is parked on a public fair grounds (People vs. Case, 190 MW 289), or
simply looks into a vehicle (State vs. Gaina, 97 SE 62), or flashes a light therein
(Rowland vs. Commonwealth, 259 SW 33), these do not constitute unreasonable
search.

The setting up of checkpoints in Valenzuela, Metro Manila may be considered as


security measure to effectively maintain peace and order and to thwart plots to
destabilize the government. In this connection, the Court may take judicial notice
of the shift to urban centers and their suburbs of the insurgency movement, so
clearly reflected in the increased killings in cities of police and military men by
NPA's "sparrow units," not to mention the abundance of unlicensed firearms.

BETWEEN THE INHERENT RIGHT OF THE STATE TO PROTECT ITS


EXISTENCE AND PROMOTE PUBLIC WELFARE AND AN INDIVIDUAL'S
RIGHT AGAINST A WARRANTLESS SEARCH WHICH IS HOWEVER
REASONABLY CONDUCTED, THE FORMER SHALL PREVAIL.

True, the manning of these checkpoints by the military is susceptible of abuse by


the men in uniform, in the same manner that all governmental power is
susceptible to abuse. BUT , AT THE COST OF OCCASIONAL
INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO THE
CITIZEN, THE CHECKPOINTS DURING THESE ABNORMAL TIMES ARE
PART OF THE PRICE WE PAY FOR AN ORDERLY SOCIETY AND
PEACEFUL COMMUNITY.

Finally, it must be emphasized that on July 17, 1988, the military checkpoints in
Metro Manila were temporarily lifted and a review and refinement of the rules in
the conduct of the police and military manning the checkpoints upon order of the
NCRDC Chief.

Cruz and Sarmiento, JJ., dissenting:

The bland declaration by the majority that individual rights must yield to the
demands of national security ignores the fact that the Bill of Rights was intended
precisely to limit the authority of the State even if asserted on the ground of
national security.

RESOLUTION ON THE MOTION FOR


RECONSIDERATION, JUNE 15, 1990
Very Important:

The Supreme Court in its Resolution of the Motion for Reconsideration dated 15
June, 1990, held that military and police checkpoints are not illegal as these
measures to protect the government and safeguards the lives of the people. The
checkpoints are legal as where the survival of the organized government is on the
balance, or where the lives and safety of the people are in grave peril. However,
the Supreme Court held further that the military officers manning the
checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY
SEARCH.
Read also:

1-a. Rizal Alih vs. Gen. Castro, June 23,1987


1-b. P s. Cendana, October 17, 1990
1-c. P. vs. Castiller, August 6, 1990
1-d. P. vs. Olaes, July 30, 1990
2. Papa vs. Mago, 22 SCRA 857
3. Roldan vs. Arca, 65 SCRA 336
4. P. vs. CFI, 101 SCRA 86
5. Pacis vs. Pamaran, 56 SCRA 16
6. Lopez vs. Commisioner, 65 SCRA 336
7. P vs. Cruz, 165 SCRA 135
8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA 152
9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search when a
NARCOM (now PDEA) officer arrests the person who owns a bag which
contains marijuana which he found out when he smelled the same. Here , there is
a probable cause since he has personal knowledge due to his expertise on drugs)
11. PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was given by the
police the amount of P100.00, he went to buy marijuana from the accused then returned
to the police headquarters with said article. Thereafter, the policemen went to arrest the
accused without warrant. The arrest is not valid since it does not fall under Section 5 Rule
113)
Likewise, after securing a search warrant authorizing the seizure of shabu and its
paraphernalia and an unlicensed firearm was seized instead, said gun is
inadmissible in evidence.

k. May a non-judicial officer issue a warrant of arrest? (NO)

Read:

1. Harvey vs. Miriam Defensor-Santiago, June 26,1988


2. Moreno vs. Vivo, 20 SCRA 562
3. Lim vs. Ponce de Leon, 66 SCRA 299
4. HORTENCIA SALAZAR VS. HON TOMAS ACHACOSO, G.R. NO. 81510, March 14,
1990 (En banc)
5. Presidential Anti_Dollar Salting Task Force vs. CA, March 16, 1989

l. Properties subject to seizure

Read:

1. 1. Sec. 2, Rule 126,1985 Rules on Crimial Procedure, as amended


2.
2. ESPANO VS. CA, 288 SCRA 558

m. Warrantless searches and arrests

Read:

1. P. vs. Bati, August 27, 1990


1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February 9, 1989
1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 & 137 SCRA 647

1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs. Aminnudin, July 6,
1988, supra)
1-d. Posadas vs. CA, Aug. 2, 1990
1-e. P. vs. De la Cruz
1-f. P. vs. ortiz, Dec. 3, 1990
1-g. Rolito Go vs. CA, Feb. 11, 1992
1-h. People vs. Mati, January 18, 1991
2. Morales vs. Ponce Enrile, 121 SCRA 538
2-a. P vs. Burgos, 144 SCRA 1
2-b. People vs. de la Cruz, 184 SCRA 416
2-c. Gatchalian vs. Board, May 31, 1991
2-d. People vs. Sucro, March 18, 1991
2-e. PEOPLE VS. SOLAYAO, 262 SCRA 255
2-f. PEOPLE VS. CUISON, 256 SCRA 325
2-g. PEOPLE VS. DAMASO, 212 SCRA 547
2-h. OPOSADAS VS. CA, 258 SCRA 188
2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)
3. Sec. 6, Rule 113, 1985 Rules on Criminal Procedure, as amended

n. Effect posting bail or entering a plea during the arraignment, if the arrest was
illegal. (The alleged illegality of the arrest is deemed waived upon posting of the
bond by the accused)

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

The policeman arrested the accused-appellant on the basis solely of what


Reynaldo Castro had told him and not because he saw the accused-appellant
commit the crime charged against him. Indeed, the prosecution admitted that there
was no warrant of arrest issued against accused-appellant when the latter was
taken into custody. Considering that the accused-appellant was not committing a
crime at the time he was arrested nor did the arresting officer have any personal
knowledge of facts indicating that accused-appellant committed a crime, his arrest
without a warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment, the accusedappellant waived his right to raise the issue of illegality of his arrest. IT IS NOW
SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE
PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE
PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS
PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT
THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE
SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS
RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE
CULPABILITY OF THE ACCUSED.

Read:

1. Callanta vs. Villanueva, 77 SCRA 377


2. PEOPLE VS. NAZARENO, 260 SCRA 256
3. FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222
4. PEOPLE VS. NAZARENO, 260 SCRA 256
5. PEOPLE VS. LAPURA, 255 SCRA 85
6. PEOPLE VS. SILAN, 254 SCRA 491

o . Penalty for illegal arrest

Read:

Palon vs. NAPOLCOM, May 28, 1989

p. Judicial pronouncements on illegally seized evidence, 106 SCRA 336

q. The exclusionary rule,155 SCRA 494

n. What is the status of a document obtained through subpoena?

Read:

Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990


r. Search warrant for pirated video tapes

1. Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly pirated tape
should be presented before the judge in order to convince him of the existence of
probable cause)
2. COLUMBIA PICTURES VS. CA, 261 SCRA 144

UY VS. BIR, 344 SCRA 36

The following are the requisites of a valid search warrant:

1. The warrant must be issued upon probable cause;


2. The probable cause must be determined by the judge himself and not by applicant or any
other person;
3. In determining probable cause, the judge must examine under oath and affirmation the
complainant and such witnesses as the latter may produce; and
4. The warrant issued must particularly describe the place to be searched and the person or
things to be seized.

A description of the place to be searched is sufficient if the officer with the


warrant can, with reasonable effort, ascertain and identify the place intended and
distinguish it from other places in the community. Search warrants are not issued
on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. In this
case, most of the items listed in the warrants fail to meet the test of particularity,
especially since the witness had furnished the judge photocopies of the documents
sought to be seized. THE SEARCH WARRANT IS SEPARABLE, AND
THOSE ITEMS NOT PARTICULARLY DESCRIBED MAY BE CUT OFF
WITHOUT DESTROYING THE WHOLE WARRANT.

PEOPLE VS. VALDEZ, 341 SCRA 25

The protection against unreasonable search and seizure covers both innocent and
guilty alike against any form of highhandedness of law enforces.

The plain view doctrine, which may justify a search without warrant,
APPLIES ONLY WHERE THE POLICE OFFICER IS NOT SEARCHING
FOR EVIDENCE AGAINST THE ACCUSED, BUT INADVERTENTLY
COMES ACROSS AN INCRIMINATING OBJECT.

Just because the marijuana plants were found in an unfenced lot does nor prevent
the appellant from invoking the protection afforded by the Constitution. The right
against unreasonable search and seizure is the immunity of ones person, which
includes his residence, papers and other possessions. For a person to be immune
against unreasonable searches and seizures, he need not be in his home or office,
within a fenced yard or private place.

PEOPLE VS. BAULA, 344 SCRA 663

In case of consented searches or waiver of the constitutional guarantee against


obtrusive searches, it is fundamental that to constitute waiver, IT MUST
APPEAR THAT THE RIGHT EXISTS; THE PERSONS INVOLVED HAD
KNOWLEDGE, EITHER ACTUAL OR CONSTRUCTIVE, of the existence
of such right. The third condition did not exist in the instant case. Neither was the
search incidental to a valid warrantless arrest. (PEOPLE VS. FIFUEROA, July 6,
2000) An alleged consent to a warrantless search and seizure cannot be based
merely on the presumption of regularity in the performance of official duty. THE
PRESUMPTION BY ITSELF, CANNOT PREVAIL AGAINST THE
CONSTITUTIONALLY PROTECTED RIGHTS OF AN INDIVIDUAL, AND
ZEAL IN THE PURSUIT OF CRIMINALS CANNOT ENNOBLE THE USE OF
ARBITRARY METHODS THAT THE CONSTITUTION ITSELF ABHORS.

CHAPTER IV
THE RIGHT TO PRIVACY

Section 3. 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.

Any evidence obtained in violation of this or the preceding


section shall be inadmissible for any purpose in any
proceeding.

Read:

Read:

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law,


Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15,
2007 (This Law shall be automatically suspended one (1) month before and two
(2) months after the holding of any election)

Please observe the procedure in obtaining the The Warrant [or Order] of
Surveillance, not found in the 1987 Philippine Constitution.

SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING


OF COMMUNICATIONS OF SUSPECTS OR CHARGED OF TERRORISM

Section 7. Surveillance of suspects and interception and recording of


communications. The provisions of RA 4200 (Anti-Wiretapping Law) to the
contrary notwithstanding, a police or law enforcement official and the members of
his team may, upon a written order of the Court of Appeals, listen to, intercept and
record, with the use of any mode, form or kind or type of electronic or other
surveillance equipment or intercepting and tracking devices, or with the use of
any other suitable ways or means for that purpose, any communication, message,
conversation, discussion, or spoken or written words between members of a
judicially declared and outlawed terrorist organization, association, or group of
persons or of any person charged with or suspected of the crime of terrorism or
conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications


between lawyers and clients, doctors and patients, journalists and their sources
and confidential business correspondence shall not be authorized.

Section 8. Formal Application for Judicial Authorization.- The written order of


the authorizing division of the Court of Appeals to track down, tap, listen,
intercept, and record communications, messages, conversations, discussions, or
spoken or written words of any person suspected of the crime of terrorism or the
crime of conspiracy to commit terrorism, shall only be granted by the authorizing
division of the Court of Appeals UPON AN EX-PARTE written application of a
police or law enforcement official who has been duly authorized in writing by the
Anti-Terrorism Council created in Section 53 of this Act to file such ex-parte
application, and upon examination under oath and affirmation of the applicant and
the witnesses who may produce to establish:

That there is probable cause to believe based on personal knowledge of facts and
circumstances that the said crime of terrorism or conspiracy to commit terrorism has been
committed, or is being committed, or is about to be committed;

That there is probable cause to believe based on personal knowledge of facts and
circumstances that evidence which is essential to the conviction of any charged or
suspected person for, or to the solution or prevention of any such crimes, will be
obtained; and

That there is no other effective means readily available for acquiring such evidence.

Sec. 9. Classification and Contents of the Order of the Court. The written order
granted by the authorizing division of the Court of Appeals as well as its order, if
any, to extend or renew the same, the original application of the applicant,
including his application to extend or renew, if any, and the written authorizations
of the Anti-Terrorism Council shall be deemed and are hereby declared as
classified information: Provided, That the person being surveilled or whose
communications, letters, papers, messages, conversations, discussions, spoken or
written words and effects have been monitored, listened to, bugged or recorded by
law enforcement authorities has the right to be informed of the acts done by the
law enforcement authorities in the premises or to challenge, if he or she intends to
do so, the legality of the interference before the Court of Appeals which issued
said written order. The written order of the authorizing division of the court of
Appeals shall specify the following:

The identity, such as name and address, if known, of the charged of suspected persons
whose communications, messages, conversations, discussions, or spoken or written
words are to be tracked down, tapped, listened to, intercepted or recorded and, in case of
radio, electronic, or telephone (whether wireless or otherwise) communications,
messages, conversations, discussions, or spoken or written words, the electronic
transmission systems or the telephone numbers to be tracked down, tapped, listened to,
intercepted, and recorded and their locations if the person suspected of the crime of
terrorism or conspiracy to commit terrorism is not fully known, such person shall be
subject to continuous surveillance provided there is reasonable ground to do so;

The identity (name and address, and the police or law enforcement organization) of the
members of his team judicially authorized to track down, tap, listen to, intercept, and
record the communications, messages, conversations, discussions, or spoken or written
words;

The offense or offenses committed, or being committed, or sought to be prevented; and

The length of time which the authorization shall be used or carried out.

Section. 10. Effective Period of Judicial Authorization. Any authorization granted


by the authorizing division of the court of Appealsshall only be effective for the
length of time specified in the written order of the authorizing division of the
Court of Appeals, which shall not exceed 30 days from the date of receipt of the
written order of the authorizing division of the court of Appeals by the applicant
police or law enforcement official.

The CA may extend or renew the said authorization for another non-extendible
period, which shall not exceed 30 days from the expiration of the original
periodThe ex-parte application for renewal has been duly authorized by the
Anti-terrorism Council in writing.

If no case is filed within the 30-day period, the applicant police or law
enforcement official shall immediately notify the person subject of the
surveillance, interception, and recording of the termination of the said
surveillance, interception and recording. [Penalty to be imposed on the police
official who fails to inform the person subject of surveillance of the termination of
the surveillance, monitoring, interception and recording shall be penalized to 10
years and 1 day to 12 years.

Section 15. Evidentiary Value of Deposited Materials. Any listened to,


intercepted, and recorded communications, messages, conversationsWHICH
HAVE BEEN SECURED IN VIOLATION OF THE PERTINENT PROVISIONS
OF THIS ACT, SHALL ABSOLUTELY NOT BE ADMISSIBLE AND USABLE
AS EVIDENCE AGAINST ANYBODY IN ANY JUDICIAL, QUASIJUDICIAL, LEGISLATIVE, OR ADMINISTRATIVE INVESTIGATION,
INQUIRY, PROCEEDING, OR HEARING.

JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS,


ACCOUNTS, AND RECORDS OF SUSPECTED OR CHARGED
TERRORISTS

Section 27. judicial authorization required to examine bank deposits, accounts and
records.

The justices of CA designated as special court to handle anti-terrorism cases after


satisfying themselves of the existence of probable cause in a hearing called for
that purpose that:

A person charged with or suspected of the crime of terrorism or conspiracy to commit


terrorism;

Of a judicially declared and outlawed terrorist organization or group of persons;

Of a member of such judicially declared and outlawed organization, association or group


of persons, may authorize in writing any police or law enforcement officer and the
members of his team duly authorized in writing by the anti-terrorism council to:
1. examine or cause the examination of, the deposits, placements, trust accounts,
assets, and records in a bank or financial institution; and
2. gather or cause the gathering of any relevant information about such deposits,
placements, trust accounts, assets, and records from a bank or financial institution.
The bank or financial institution shall not refuse to allow such examination or to
provide the desired information, when so ordered by and served with the written
order of the Court of Appeals.

Sec. 28. Application to examine deposits, accounts and records.

The written order of the CA authorizing the examination of bank deposits,


placements, trust accounts, assets and records:

A person charged with or suspected of the crime of terrorism or conspiracy to commit


terrorism;

Of a judicially declared and outlawed terrorist organization or group of persons;

Of a member of such judicially declared and outlawed organization, association or group


of persons, in a bank or financial institution-

-SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE


CA UPON AN EX-PARTE APPLICATION TO THAT EFFECT OF A POLICE
OR LAW ENFORCEMENT OFFICIAL who has been duly authorized by the
Anti-Terrorism Council to file such ex-parte application and upon examination
under oath or affirmation of the applicant and his witnesses he may produce to
establish the facts that will justify the need and urgency of examining and freezing
the bank deposits, placements, trust accounts, assets and records:

Of A person charged with or suspected of the crime of terrorism or conspiracy to commit


terrorism;

Of a judicially declared and outlawed terrorist organization or group of persons;

Of a member of such judicially declared and outlawed organization, association or group


of persons.

Section 35. Evidentiary value of deposited bank materials.- Any information,


data, excerpts, summaries, notes, memoranda, work sheets, reports or documents
acquired from the examination of the bank deposits, placements, trust accounts,
assets and records of:

A person charged with or suspected of the crime of terrorism or conspiracy to commit


terrorism;

Of a judicially declared and outlawed terrorist organization or group of persons;

Of a member of such judicially declared and outlawed organization, association or group


of persons,

-which have been secured in violation of the provisions of this Act, shall
absolutely not be admissible and usable as evidence against anybody in any
judicial, quasi-judicial, legislative or administrative investigation, inquiry,
proceeding or hearing.

1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502 SCRA 419

2. ZULUETA VS. CA, February 10, 1996

The wife forcibly opened the drawers at the clinic of her doctor-husband and took
diaries, checks and greeting cards of his alleged paramours. Thereafter, she used
the same in their legal separation case. Said documents are inadmissible in
evidence. This is so because the intimacies of husband and wife does not justify
the breaking of cabinets to determine marital infidelity.

3. OPLE VS. TORRES, July 23, 1998

Puno, J.

Facts:

On December 12, 1996, then President FIDEL V. RAMOS issued Administrative


Order No. 308 entitled ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM.

The AO seeks to have all Filipino citizens and foreign residents to have a
Population Reference Number (PRN) generated by the National Statistics Office
(NSO) through the use of BIOMETRICS TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1. The establishment of the PRN without any law is an unconstitutional usurpation of the
legislative powers of the Congress of the Philippines;
2. The appropriation of public funds for the implementation of the said AO is
unconstitutional since Congress has the exclusive authority to appropriate funds for such
expenditure; and
3. The AO violates the citizens right to privacy protected by the Bill of Rights of the
Constitution.

Held:

1. The AO establishes a system of identification that is all-encompassing in scope, affects


the life and liberty of every Filipino citizens and foreign residents and therefore, it is
supposed to be a law passed by Congress that implements it, not by an Administrative
Order issued by the President. Administrative Power, which is supposed to be exercised
by the President, is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. It enables the President to fix a uniform
standard of administrative efficiency and check the official conduct of his agents.
Prescinding from the foregoing precepts, AO 308 involves a subject that is not
appropriate to be covered by an Administrative Order. An administrative order is an
ordinance issued by the President which relates to specific aspects in the administrative
operation of the government. It must be in harmony with the law and should be for the
sole purpose of implementing the law and carrying out the legislative policy. The subject

of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of
legislative power.

2. The AO likewise violates the right to privacy since its main purpose is to provide a
common reference number to establish a linkage among concerned agencies through the
use of BIOMETRICS TECHNOLOGY. Biometry is the science of the application of
statistical methods to biological facts; a mathematical analysis of a biological data. It is
the confirmation of an individuals identity through a fingerprint, retinal scan, hand
geometry or facial features. Through the PRN, the government offices has the chance of
building a huge and formidable information base through the electronic linkage of the
files of every citizen. The data, however, may be gathered for gainful and useful
government purposes; but the existence of this vast reservoir of personal information
constitutes a covert invitation to misuse, a temptation that may be too great for some of
our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms how
these informations gathered shall be handled. It does not provide who shall
control and access the data and under what circumstances and for what purpose.
These factors are essential to safeguard the privacy and guaranty the integrity of
the information. The computer linkage gives other government agencies access to
the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST
LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE
CONTROL PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS
BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY,
CAN MAKE USE OF THE DATA FOR WHATEVER PURPOSE, OR WORSE,
MANIPULATE THE DATA STORED WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that personal


information gathered about our people will be used only for specified purposes
thereby violating the citizens right to privacy.

KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO


ERMITA, ET AL., April 19, 2006 & June 20, 2006

BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET


AL., April 19, 2006 & June 20, 2006

Carpio, J.

President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420


that mandates the Adoption of a Unified, Multi-purpose Identification
System by all Government Agencies in the Executive Department. This is so
despite the fact that the Supreme Court held in an En Banc decision in 1998
OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative Order
No. 308[National computerized Identification Reference System] issued by then
President Fidel V. Ramos that the same is unconstitutional because a national ID
card system requires legislation because it creates a new national data collection
and card issuance system, where none existed before. The Supreme Court
likewise held that EO 308 as unconstitutional for it violates the citizens right to
privacy.

Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is
unconstitutional on two (2) grounds:

1. usurpation of legislative powers; and


2. it infringes on the citizens right to privacy

Held:

The said Executive Order No. 420 does not violate the citizens right to privacy since
it does not require all the citizens to be issued a national ID as what happened in
AO 308. Only those dealing or employed with the said government entities who
are required to provide the required information for the issuance of the said ID.

CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504
SCRA 704

Sandoval-Gutierrez, J.
The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced


Philippine Senate Resolution No. 455 (Senate Res. No. 455),36[4] directing an
inquiry in aid of legislation on the anomalous losses incurred by the Philippines
Overseas Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings
Corporation (PHC) due to the alleged improprieties in their operations by their
respective Board of Directors.

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of


Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of
the herein petitioners, inviting him to be one of the resource persons in the public
meeting jointly conducted by the Committee on Government Corporations and
Public Enterprises and Committee on Public Services. The purpose of the public
meeting was to deliberate on Senate Res. No. 455.37[6]

On May 9, 2006, Chairman Sabio and other commissioners of the PCGG declined
the invitation because of prior commitment.38[7] At the same time, they invoked
Section 4(b) of E.O. No. 1 earlier quoted.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia


arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA,
Mandaluyong City and brought him to the Senate premises where he was
detained.

Hence, Chairman Sabio filed with the Supreme Court a petition for
habeas corpus against the Senate Committee on Government Corporations and
Public Enterprises and Committee on Public Services, their Chairmen, Senators
Richard Gordon and Joker P. Arroyo and Members.

I S S U E S:

Is the investigation conducted on the petitioners violative of their right to privacy?

H E L D:

Zones of privacy are recognized and protected in our laws.39[46] Within


these zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we accord to
these zones arises not only from our conviction that the right to privacy is a
constitutional right and the right most valued by civilized men,40[47] but also
from our adherence to the Universal Declaration of Human Rights which
mandates that, no one shall be subjected to arbitrary interference with his
privacy and everyone has the right to the protection of the law against such
interference or attacks.41[48]

Our Bill of Rights, enshrined in Article III of the Constitution, provides at


least two guarantees that explicitly create zones of privacy. It highlights a persons
right to be let alone or the right to determine what, how much, to whom and
when information about himself shall be disclosed.42[49] Section 2 guarantees
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. Section 3 renders inviolable the privacy of communication
and correspondence and further cautions that any evidence obtained in
violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

In evaluating a claim for violation of the right to privacy, a court must


determine whether a person has exhibited a reasonable expectation of privacy and,
if so, whether that expectation has been violated by unreasonable government
intrusion.43[50] Applying this determination to these cases, the important inquiries
are: first, did the directors and officers of Philcomsat Holdings Corporation
exhibit a reasonable expectation of privacy?; and second, did the government
violate such expectation?

The answers are in the negative. Petitioners were invited in the Senates
public hearing to deliberate on Senate Res. No. 455, particularly on the
anomalous losses incurred by the Philippine Overseas Telecommunications

Corporation (POTC), Philippine Communications Satellite Corporation


(PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the
alleged improprieties in the operations by their respective board of
directors. Obviously, the inquiry focus on petitioners acts committed in the
discharge of their duties as officers and directors of the said corporations,
particularly Philcomsat Holdings Corporation. Consequently, they have no
reasonable expectation of privacy over matters involving their offices in a
corporation where the government has interest. Certainly, such matters are
of public concern and over which the people have the right to information.

This goes to show that the right to privacy is not absolute where there
is an overriding compelling state interest. In Morfe v. Mutuc,44[51] the Court, in
line with Whalen v. Roe,45[52] employed the rational basis relationship test when it
held that there was no infringement of the individuals right to privacy as the
requirement to disclosure information is for a valid purpose, i.e., to curtail and
minimize the opportunities for official corruption, maintain a standard of honesty
in public service, and promote morality in public administration.46[53] In Valmonte
v. Belmonte,47[54] the Court remarked that as public figures, the Members of the
former Batasang Pambansa enjoy a more limited right to privacy as
compared to ordinary individuals, and their actions are subject to closer
scrutiny. Taking this into consideration, the Court ruled that the right of the people
to access information on matters of public concern prevails over the right to
privacy of financial transactions.

Under the present circumstances, the alleged anomalies in the


PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the
conspiratorial participation of the PCGG and its officials are compelling reasons
for the Senate to exact vital information from the directors and officers of
Philcomsat Holdings Corporations, as well as from Chairman Sabio and his
Commissioners to aid it in crafting the necessary legislation to prevent corruption
and formulate remedial measures and policy determination regarding PCGGs
efficacy. There being no reasonable expectation of privacy on the part of those
directors and officers over the subject covered by Senate Res. No. 455, it follows
that their right to privacy has not been violated by respondent Senate Committees.

Let it be stressed at this point that so long as the constitutional rights of


witnesses, like Chairman Sabio and his Commissioners, will be respected by
respondent Senate Committees, it their duty to cooperate with them in their efforts
to obtain the facts needed for intelligent legislative action. The unremitting
obligation of every citizen is to respond to subpoenae, to respect the dignity of
the Congress and its Committees, and to testify fully with respect to matters
within the realm of proper investigation.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede,


Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio
Jalandoni, PCGGs nominees to Philcomsat Holdings Corporation, as well as its
directors and officers, must comply with the Subpoenae Ad Testificandum
issued by respondent Senate Committees directing them to appear and testify
in public hearings relative to Senate Resolution No. 455.

CHAPTER V - FREEDOM OF SPEECH,


PRESS, EXPRESSION, etc.

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for the
redress of their grievances.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law,


Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15,
2007 (This Law shall be automatically suspended one (1) month before and two
(2) months after the holding of any election)

Section 26 provides that persons who have been charged with terrorism or
conspiracy to commit terrorism---even if they have been granted bail because
evidence of guilt is not strongcan be:

Detained under house arrest;

Restricted from traveling; and/or

Prohibited from using any cellular phones, computers, or other means of communications
with people outside their residence.

1. Rule on criticisms against acts of public officers

Read:

1. Espuelas vs. People, 90 Phil. 524


2. US vs. Bustos, 37 Phil. 731 (A public official should not be onion-skinned
with reference to comments upon his official acts. The interest of the
government and the society demands full discussion of public affairs)
3. P. vs. Perez, 45 Phil. 599
4. Mercado vs. CFI, 116 SCRA 93

2. Freedom of the press, in general

Read:

BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT OF


APPEALS & RAMON LABO, JR., 444 SCRA 28 [November 25, 2004]

Freedom of Expression; the public has the right to be informed on the mental,
moral and physical fitness of candidates for public office.

FACTS:
1. In the January 3, 1988 issue of the Baguio Midland Courier (BMC), Cecille Afable, the
Editor-in-Chief, in her column In and Out of Baguio made the following comments:

Of all the candidates for Mayor of Baguio City), Labo has the most
imponderables about him. People would ask: can he read and write? Why is he
always talking about his Japanese father-in-law? Is he really a Japanes Senator or
a barrio Kapitan? Is it true that he will send P18M aid to Baguio? Somebody
wanted to put an advertisement of Labo in the Midland Courier but was refused
because he has not yet paid his account of the last time he was a candidate for
Congress. We will accept all advertisements for him if he pays his old account
first.

2. In the same column, Cecille Afable wrote the following comments in her January 10,
1988 column at the Courier:

I heard that the Dumpty in the Egg is campaigning for Cortes. Not fair. Some
real doctors are also busy campaigning against Labo because he has not also paid
their medical services with them. Since he is donating millions he should also
settle his small debts like the reportedly insignificant amount of P27,000 only. If
he wins, several teachers were signifying to resign and leave Baguio forever, and
Pangasinan will be the franca-liqua of Baguio.

3. As a result of the above articles, Ramon Labor, Jr. filed a complaint for Damages before
the regional trial Court of Baguio City as he claimed said articles were libelous. He
likewise filed a separate criminal complaint before the Office of the City Prosecutor of
Baguio but was dismissed;

4. Labo claimed that the said articles were tainted with malice because he was allegedly
described as Dumpty in the Egg or one who is a failure in his business which is false
because he is a very successful businessman or to mean zero or a big lie; that he is a
balasubas due to his alleged failure to pay his medical expenses;

5. The petitioners, however, were able to prove that Labo has an unpaid obligation to the
Courier in the amount of P27,415.00 for the ads placed by his campaigners for the 1984
Batasang Pambansa elections;

6. The Regional Trial Court, Branch 6, Baguio City, in its Decision dated June 14, 1990
dismissed Labos complaint for damages on the ground that the article of petitioner
Afable was privileged and constituted fair comment on matters of public interest as it
dealt with the integrity, reputation and honesty of private respondent Labo who was a
candidate for Mayor of Baguio City;

7. On January 7, 1992, the Court of Appeals reversed the RTC Decision and ordered the
petitioners to pay Ramon Labo, Jr. damages in the total amount of P350,000.00 after
concluding that the Dumpty in the Egg refers to no one but Labo himself.

Hence, the Petition to the Supreme Court.

ISSUES:

Was Labo the Dumpty in the Egg described in the questioned article/

Were the articles subject of the case libelous or privileged/

HELD:

1. The Court of Appeals is wrong when it held that Labo is the Dumpty in the Egg in the
questioned article. This is so because the article stated that The Dumpty in the Egg is
campaigning for Cortes, another candidate for mayor and opponent of Labo himself. It
is unbelievable that Labo campaigned for his opponent and against himself. Although
such gracious attitude on the part of Labo would have been commendable, it is contrary
to common human experience. As pointed out by the petitioners, had he done that, it is
doubtful whether he could have won as City Mayor of Baguio in the 1988 elections,
which he actually did. In line with the doctrine in BORJAL VS. CA, 310 SCRA 1, that it
is also not sufficient that the offended party recognized himself as the person attacked or
defamed, but it must be shown that at least a 3rd person could identify him as the object of
the libelous publication, the case should be dismissed since Labo utterly failed to dispose
of this responsibility.

2. Labo claims that the petitioners could not invoke public interest to justify the
publication since he was not yet a public official at that time. This argument is without
merit since he was already a candidate for City mayor of Baguio. As such, the article is
still within the mantle of protection guaranteed by the freedom of expression provided in
the Constitution since it is the publics right to be informed of the mental, moral and
physical fitness of candidates for public office. This was recognized as early as the case
of US VS. SEDANO, 14 Phil. 338 [1909] and the case of NEW YORK TIMES VS.
SULLIVAN, 376 U.S. 254 where the US Supreme Court held:

it is of the utmost consequence that the people should discuss the


character and qualifications of candidates for their suffrages. The
importance to the State and to society of such discussions is so vast, and
the advantages derived so great, that they more than counterbalance the
inconvenience of private persons whose conduct may be involved, and
occasional injury to the reputations of individuals must yield to the public
welfare, although at times such injury may be great. The public benefit
from publicity is so great and the chance of injury to private character so
small, that such discussion must be privileged.

Clearly, the questioned articles constitute fair comment on a matter of public


interest as it dealt with the character of the private respondent who was running
for the top elective post in Baguio City at that time.

PABLITO V. SANIDAD VS. COMELEC,


G.R. NO. 90878, January 29, 1990

Freedom of expression and of the press

Medialdea, J.

Facts:

1. On October 23, 1989, RA 6766, entitled "AN ACT PROVIDING FOR AN


ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was
enacted into law;

2. Pursuant to said law, the City of Baguio and Provinces of Benguet, Abra, Mt.
Province, Ifugao and Kalinga-Apayao, all comprising the autonomous region
shall take part in a plebiscite originally scheduled for December 27, 1989 but was
reset to January 30, 1990 specifically for the ratification or rejection of the said
act;

3. By virtue of the 1987 Constitution and the Omnibus Election Code (BP 881),
the Comelec issued Comelec Resolution No. 2167, Section 19 of which provides:

"Section 19. Prohibition on columnist, commentators or announcers.During the plebiscite campaign period, on the day before and on plebiscite
day, no mass media columnist, commentator, announcer or personality
shall use his column or radio or television time to campaign for or against
the plebiscite issues."

4. On November 20, 1989, petitioner PABLITO V. SANIDAD who is a columnist


("OVERVIEW") for the Baguio Midland Courier, a weekly newspaper circulated
in the City of Baguio and the Cordilleras, filed a petition for Prohibition with
prayer for the issuance of a temporary restraining order or a writ of preliminary
injunction against the Comelec to enjoin the latter from enforcing Section 19 of
resolution No. 2167. Petitioner claims that the said provision is violative of his
constitutional freedom of expression and of the press and it also constitutes a prior
restraint because it imposes subsequent punishment for those who violate the
same;

5. On November 28, 1989, the Supreme Court issued a temporary restraining


order enjoining the respondent from enforcing Section 19 of Resolution No. 2167;

6. On January 9, 1990, Comelec through the Solicitor General filed its Comment
and moved for the dismissal of the petition on the ground that Section 19 of

Resolution No. 2167 does not absolutely bar the petitioner from expressing his
views because under Section 90 and 92 of BP 881, he may still express his views
or campaign for or against the act through the Comelec space and airtime.

Held:
What is granted by Art. IX-C of the Constitution to the Comelec is the power to
supervise and regulate the use and enjoyment of franchises, permits or other
grants issued for the operation of transportation or other public utilities to the end
that equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates are insured. The evil sought to be prevented by this provision is
the possibility that a franchise holder may favor or give undue advantage to a
candidate in terms of advertising time and space. This is also the reason why a
columnist, commentator or announcer is required to take a leave of absence from
his work during the campaign period if he is a candidate.

HOWEVER, NEITHER ARTICLE IX-C OF THE CONSTITUTION NOR


SECTION 11(B), 2ND PAR. OF RA 6646 CAN BE CONSTRUED TO MEAN
THAT THE COMELEC HAS ALSO BEEN GRANTED THE RIGHT TO
SUPERVISE AND REGULATE THE EXERCISE BY MEDIA
PRACTITIONERS THEMSELVES OF THEIR RIGHT TO EXPRESSION
DURING THE PLEBISCITE PERIODS. Media practitioners exercising their
freedom of expression during the plebiscite periods are neither the franchise
holders nor the candidates. In fact, there are no candidates in a plebiscite.

While it is true that the petitioner is not absolutely barred from campaigning for or
against the Organic Act, said fact does not cure the constitutional infirmity of
Section 19, Comelec Resolution No. 2167. This is so because IT IS STILL A
RESTRICTION ON HIS CHOICE OF THE FORUM WHERE HE MAY
EXPRESS HIS VIEW.

Plebiscite issues are matters of public concern and importance. The people's right
to be informed and to be able to freely and intelligently make a decision would be
better served by access to an unabridged discussion of the issues, INCLUDING
THE FORUM. The people affected by the issues presented in a plebiscite should
not be unduly burdened by restrictions on the forum where the right to expression
may be exercised.

ACCORDINGLY, Section 19 of Comelec Resolution No. 2167 is hereby declared


UNCONSTITUTIONAL.
Read also:

1. In re: Ramon Tulfo,March 19, 199


2. In re: Atty. Emil Jurado, July 12, 1990
3. Burgos vs. Chief of Staff, 133 SCRA 800
4. Corro vs. Lising, 137 SCRA 448
5. Babst vs. NIB, 132 SCRA 316
6. Elizalde vs. Gutierrez,76 SCRA 448 (In order that any news item relating to a judicial
proceeding will not be actionable for being libelous, the same must be [a] a true and
fair report of the actual proceedings; [b] must be done in good faith; and [c] no
comments nor remarks shall be made by the writer.
7. Policarpio vs. Manila Times, 5 SCRA 148
8. Lopez vs. CA, 34 SCRA 116
9. New York Times vs. Sullivan,376 U.S.254
10. Liwayway Publishing vs. PCGG, April 15,l988

3. Freedom of expression in general

Read:

1. RANDY DAVID VS. ARROYO, May 3, 2006, 489 SCRA 160;


2. Adiong vs. Comelec, March 31, 1992 (putting of decals and stickers in ones car is
within the protected freedom of expression)

3. National Press Club vs. Comelec, March 5, 1992. Real also the dissenting and separate
opinions of the justices. (Preventing campaigns through radio, TV and newspapers is
valid in order to even the playing field between rich and poor candidates)
4. Zaldivar vs. Sandiganbayan, GR No. 7960-707 & Zaldivar vs. Gonzales, GR No. 80578,
February 1, 1989
5. Eastern Broadcasting vs. Dans,137 SCRA 628
6. Newsweek vs. IAC, 142 SCRA 171
7. Kapisanan vs. Camara Shoes, 11 SCRA 477
8. IN RE: Atty. Tipon, 79 SCRA 372
9. Lacsa vs. IAC, May 23,1988
10. Kapunan vs. De Villa, December 6, 1988
4. Not within the protection of the freedom of expression clause of the
Constitution

1. Obscenity; test of

Read:

a. P. vs. Kottinger, 45 Phil. 352


2. P vs. GO PIN, August 8, 1955

Tests:

1. Whether the average person applying to contemporary community standards would


find the work appeals to prurient interest;
2. Whether the work depicts or describes a patently offensive sexual conduct;

3. Whether the work as a whole lacks serious literary , artistic, political or scientific
value.
c. Miller vs. California, 37 L. Ed. 2d 419
d. Ginsberg vs. New York,390 U.S. 629
e. Pita vs. CA, 178 SCRA 362 (A City Mayor may not order the warrantless
seizure of magazines which he believes to be obscene; otherwise, he will become
the complainant, prosecutor and judge at the same time. He should obtain a search
warrant from a judge)

2. Libel or slander; test of-

Read:

a. Lopez and Manila Times cases, supra


b. Quisumbing vs. Lopez, 96 Phil. 510

3. Cases undersub-judice

Read:

a. P. vs. Alarcon, 69 Phil. 265

5. Freedom of assembly and to petition the government for redress of grievances

INTEGRATED BAR OF THE PHILIPPINES VS. MANILA


MAYOR JOSE LITO ATIENZA, G.R. No. 175241, February
24, 2010
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines (IBP) and lawyers H. Harry L. Roque
and Joel R. Butuyan appeal the June 28, 2006 Decision and the October 26, 2006
Resolution of the Court of Appeals that found no grave abuse of discretion on the part of
respondent Jose Lito Atienza, the then mayor of Manila, in granting a permit to rally in
a venue other than the one applied for by the IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz
(Cadiz), filed with the Office of the City Mayor of Manila a letter application for a permit
to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be
participated in by IBP officers and members, law students and multi-sectoral
organizations.
Respondent issued a permit dated June 16, 2006 allowing the IBP to stage a rally
on given date but indicated therein Plaza Miranda as the venue, instead of Mendiola
Bridge, which permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition
for certiorari docketed as CA-G.R. SP No. 94949. The petition having been unresolved
within 24 hours from its filing, petitioners filed before this Court on June 22, 2006 a
petition for certiorari docketed as G.R. No. 172951 which assailed the appellate courts
inaction or refusal to resolve the petition within the period provided under the Public
Assembly Act of 1985.
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20,
2006, respectively, denied the petition for being moot and academic, denied the relief that
the petition be heard on the merits in view of the pendency of CA-G.R. SP No. 94949,
and denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz
discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila Police
District (MPD) earlier barred petitioners from proceeding thereto. Petitioners allege that
the participants voluntarily dispersed after the peaceful conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action, docketed as I.S.
No. 06I-12501, against Cadiz for violating the Public Assembly Act in staging a rally at a
venue not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of
August 3, 2006.

In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first
assailed issuance, that the petition became moot and lacked merit. The appellate court
also denied petitioners motion for reconsideration by the second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which
respondent filed his Comment of November 18, 2008 which merited petitioners Reply of
October 2, 2009.
ISSUE:
The main issue is whether the appellate court erred in holding that the modification
of the venue in IBPs rally permit does not constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the Pubic
Assembly Act and violates their constitutional right to freedom of expression and
public assembly.
HELD:
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006 became
moot upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical use or
value. Generally, courts decline jurisdiction over such case or dismiss it on ground of
mootness. However, even in cases where supervening events had made the cases moot,
this Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and public. Moreover, as an exception to
the rule on mootness, courts will decide a question otherwise moot if it is capable of
repetition, yet evading review.
In the present case, the question of the legality of a modification of a permit to rally
will arise each time the terms of an intended rally are altered by the concerned official,
yet it evades review, owing to the limited time in processing the application where the
shortest allowable period is five days prior to the assembly. The susceptibility of
recurrence compels the Court to definitively resolve the issue at hand.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -

(a) It shall be the duty of the mayor or any official acting in his behalf to
issue or grant a permit unless there is clear and convincing evidence that
the public assembly will create a clear and present danger to public order,
public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the
application within two (2) working days from the date the application was
filed, failing which, the permit shall be deemed granted. Should for any
reason the mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the applicant on
the premises of the office of the mayor and shall be deemed to have been
filed.

(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he
shall immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the
application [sic] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial
Court, or the Intermediate Appellate Court, its decisions may be appealed
to the appropriate court within forty-eight (48) hours after receipt of the
same. No appeal bond and record on appeal shall be required. A decision
granting such permit or modifying it in terms satisfactory to the applicant
shall, be immediately executory.

(g) All cases filed in court under this Section shall be decided within
twenty-four (24) hours from date of filing. Cases filed hereunder shall be

immediately endorsed to the executive judge for disposition or, in his


absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby


allowed. (underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, the
Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is
entitled to be accorded the utmost deference and respect. It is not to be
limited, much less denied, except on a showing, as is the case with
freedom of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of
free speech. To paraphrase the opinion of Justice Rutledge, speaking for the
majority of the American Supreme Court in Thomas v. Collins, it was not
by accident or coincidence that the rights to freedom of speech and of the
press were coupled in a single guarantee with the rights of the people
peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not identical, are inseparable. In every
case, therefore, where there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other
legitimate public interest. (emphasis supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of 1985
practically codified the 1983 ruling in Reyes v. Bagatsing. In juxtaposing Sections 4 to 6
of the Public Assembly Act with the pertinent portion of the Reyes case, the Court
elucidated as follows:
x x x [The public official concerned shall] appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It
is an indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the view

that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the earliest opportunity. Thus
if so minded, they can have recourse to the proper judicial authority. (italics and
underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion when
he did not immediately inform the IBP who should have been heard first on the
matter of his perceived imminent and grave danger of a substantive evil that may
warrant the changing of the venue. The opportunity to be heard precedes the action
on the permit, since the applicant may directly go to court after an unfavorable
action on the permit.
Respondent failed to indicate how he had arrived at modifying the terms of the
permit against the standard of a clear and present danger test which, it bears
repeating, is an indispensable condition to such modification. Nothing in the issued
permit adverts to an imminent and grave danger of a substantive evil, which blank
denial or modification would, when granted imprimatur as the appellate court would have
it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a realistic appraisal not of
what may possibly occur but of what may probably occur, given all the relevant
circumstances, still the assumption especially so where the assembly is scheduled for a
specific public place is that the permit must be for the assembly being held there. The
exercise of such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the plea that it may be
exercised in some other place. (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation for his
action. It smacks of whim and caprice for respondent to just impose a change of venue
for an assembly that was slated for a specific public place. It is thus reversible error for
the appellate court not to
have found such grave abuse of discretion.
The Court DECLARES that respondent committed grave abuse of discretion in
modifying the rally permit issued on June 16, 2006 insofar as it altered the venue from
Mendiola Bridge to Plaza Miranda.

GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51

Freedom of public school teachers to peaceably assemble and petition the


government for redress of grievances; right of public school teachers to form
union.

The petitioners admitted that they participated in concerted mass actions in Metro
Manila from September to the first half of October, 1990 which temporarily
disrupted classes in Metro Manila but they claimed that they were not on strike.
They claimed that they were merely exercising their constitutional right to
peaceably assemble and petition the government for redress of their grievances.
Thus, they may not be penalized administratively.

HELD:

The issue of whether or not the mass action launched by the public school
teachers during the period from September up to the 1st half of October, 1990 was
a strike or not has been decided in the case of MANILA PUBLIC SCHOOL
TEACHERS ASSOCIATION VS. LAGUIO, 200 SCRA 323 where it was held
that these mass actions were to all intents and purposes a strike; they constituted
a concerted and unauthorized stoppage of, or absence from, work which it was the
teachers duty to perform, undertaken for essentially economic reasons.

It is undisputed fact that there was a work stoppage and that petitioners purpose
was to realize their demands by withholding their services. The fact that the
conventional term strike was not used by the striking employees to describe
their common course of action is inconsequential, SINCE THE SUBSTANCE OF
THE SITUATION, AND NOT ITS APPEARANCE, WILL BE DEEMED
CONTROLLING.

Despite the constitutional right to form associations under the Constitution,


employees in the public service may not engage in strikes, mass leaves, walkouts
and other forms of mass actions that will lead to temporary stoppage or disruption
of public service. The right of government employees to organize IS LIMITED
TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT
INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA 619)

The petitioners are not therefore entitled to their salaries during their suspension
because the general proposition is that a public official is not entitled to any
compensation if he had not rendered any service.

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS


(KMP), and GABRIELA vs. EDUARDO ERMITA, in his capacity as
Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the
Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj.
Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO
BULAONG, G.R. No. 169848, May, 2006

AZCUNA, J.:

The Facts:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838, allege that they are
citizens and taxpayers of the Philippines and that their rights as organizations and
individuals were violated when the rally they participated in on October 6, 2005
was violently dispersed by policemen implementing Batas Pambansa (B.P.) No.
880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in
G.R. No. 169848, who allege that they were injured, arrested and detained when a
peaceful mass action they held on September 26, 2005 was preempted and
violently dispersed by the police. They further assert that on October 5, 2005, a
group they participated in marched to Malacaang to protest issuances of the
Palace which, they claim, put the country under an undeclared martial rule, and
the protest was likewise dispersed violently and many among them were arrested
and suffered injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No.
169881, allege that they conduct peaceful mass actions and that their rights as
organizations and those of their individual members as citizens, specifically the
right to peaceful assembly, are affected by Batas Pambansa No. 880 and the
policy of Calibrated Preemptive Response (CPR) being followed to implement
it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be
conducted at the Mendiola bridge but police blocked them along C.M. Recto and
Lepanto Streets and forcibly dispersed them, causing injuries to several of their
members. They further allege that on October 6, 2005, a multi-sectoral rally
which KMU also co-sponsored was scheduled to proceed along Espaa Avenue in
front of the University of Santo Tomas and going towards Mendiola bridge. Police
officers blocked them along Morayta Street and prevented them from proceeding
further. They were then forcibly dispersed, causing injuries on one of them. Three
other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others
only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek
to stop violent dispersals of rallies under the no permit, no rally policy and the
CPR policy recently announced.

B.P. No. 880, The Public Assembly Act of 1985, provides:


Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right


Peaceably To Assemble And Petition The Government [And] For
Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title . This Act shall be known as The Public Assembly Act of
1985.

Sec. 2. Declaration of policy. The constitutional right of the people peaceably to


assemble and petition the government for redress of grievances is essential and
vital to the strength and stability of the State. To this end, the State shall ensure
the free exercise of such right without prejudice to the rights of others to life,
liberty and equal protection of the law.

Sec. 3. Definition of terms. For purposes of this Act:

(b) Public place shall include any highway, boulevard, avenue, road, street,
bridge or other thoroughfare, park, plaza square, and/or any open space of public
ownership where the people are allowed access.

(c) Maximum tolerance means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public assembly
or in the dispersal of the same.

Sec. 4. Permit when required and when not required.-- A written permit shall be
required for any person or persons to organize and hold a public assembly in a
public place. However, no permit shall be required if the public assembly shall be
done or made in a freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one entitled to its
legal possession is required, or in the campus of a government-owned and
operated educational institution which shall be subject to the rules and regulations
of said educational institution. Political meetings or rallies held during any
election campaign period as provided for by law are not covered by this Act.
Sec. 5. Application requirements.-- All applications for a permit shall comply with
the following guidelines:

The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and

place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.

2. The application shall incorporate the duty and responsibility of applicant under Section 8
hereof.

3. The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before
the scheduled public assembly.

4. Upon receipt of the application, which must be duly acknowledged in writing, the office
of the city or municipal mayor shall cause the same to immediately be posted at a
conspicuous place in the city or municipal building.

Sec. 6. Action to be taken on the application.

It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals
or public health.

2. The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf
refuse to accept the application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be deemed to have been
filed.

3. If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.

4. The action on the permit shall be in writing and served on the applica[nt] within twentyfour hours.

5. If the mayor or any official acting in his behalf denies the application or modifies the
terms thereof in his permit, the applicant may contest the decision in an appropriate court
of law.

6. In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate
court, its decisions may be appealed to the appropriate court within forty-eight (48) hours
after receipt of the same. No appeal bond and record on appeal shall be required. A
decision granting such permit or modifying if in terms satisfactory to the applicant shall
be immediately executory.

7. All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.

8. In all cases, any decision may be appealed to the Supreme Court.

CPR, on the other hand, is a policy set forth in a press release by Malacaang
dated September 21, 2005, shown in Annex A to the Petition in G.R. No.
169848, thus:

Malacaang Official
Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government


groups to inflame the political situation, sow disorder and incite people against
the duty constituted authorities, we have instructed the PNP as well as the local
government units to strictly enforce a no permit, no rally policy, disperse groups
that run afoul of this standard and arrest all persons violating the laws of the land
as well as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of


maximum tolerance. The authorities will not stand aside while those with ill
intent are herding a witting or unwitting mass of people and inciting them
into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens


have the right to be protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful


conduct befitting of a democratic society.

The Presidents call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a
violation of the Constitution and the International Covenant on Civil and Political
Rights and other human rights treaties of which the Philippines is a signatory.

They argue that B.P. No. 880 requires a permit before one can stage a public
assembly regardless of the presence or absence of a clear and present danger. It
also curtails the choice of venue and is thus repugnant to the freedom of
expression clause as the time and place of a public assembly form part of the
message for which the expression is sought. Furthermore, it is not content-neutral
as it does not apply to mass actions in support of the government. The words
lawful cause, opinion, protesting or influencing suggest the exposition of
some cause not espoused by the government. Also, the phrase maximum
tolerance shows that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.

Furthermore, the law delegates powers to the Mayor without providing clear
standards. The two standards stated in the laws (clear and present danger and
imminent and grave danger) are inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters
the standard of maximum tolerance set forth in B.P. No. 880, aside from being
void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the
right to assembly and therefore B.P. No. 880 cannot put the prior requirement of
securing a permit. And even assuming that the legislature can set limits to this
right, the limits provided are unreasonable: First, allowing the Mayor to deny the
permit on clear and convincing evidence of a clear and present danger is too
comprehensive. Second, the five-day requirement to apply for a permit is too long
as certain events require instant public assembly, otherwise interest on the issue
would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes
action even before the rallyists can perform their act, and that no law, ordinance or
executive order supports the policy. Furthermore, it contravenes the maximum
tolerance policy of B.P. No. 880 and violates the Constitution as it causes a
chilling effect on the exercise by the people of the right to peaceably assemble.

I s s u e s:

4. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12


13(a) and 14(a) thereof, and Republic Act No. 7160:

1. Are these content-neutral or content-based regulations?


2. Are they void on grounds of overbreadth or vagueness?
3. Do they constitute prior restraint?
4. Are they undue delegations of powers to Mayors?
5. Do they violate international human rights treaties and the Universal Declaration
of Human Rights?

5. On the constitutionality and legality of the policy of Calibrated Preemptive Response


(CPR):

1. Is the policy void on its face or due to vagueness?


2. Is it void for lack of publication?
3. Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?

H e l d:

Petitioners standing cannot be seriously challenged. Their right as citizens


to engage in peaceful assembly and exercise the right of petition, as guaranteed by
the Constitution, is directly affected by B.P. No. 880 which requires a permit for
all who would publicly assemble in the nations streets and parks. They have, in
fact, purposely engaged in public assemblies without the required permits to press
their claim that no such permit can be validly required without violating the
Constitutional guarantee. Respondents, on the other hand, have challenged such

action as contrary to law and dispersed the public assemblies held without the
permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of


expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition
for redress of grievances is, together with freedom of speech, of expression, and
of the press, a right that enjoys primacy in the realm of constitutional protection.
For these rights constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected. As stated in
Jacinto v. CA, the Court, as early as the onset of this century, in U.S. v. Apurado
already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners rights to peaceful assembly to


petition the government for a redress of grievances and, for that matter, to
organize or form associations for purposes not contrary to law, as well as to
engage in peaceful concerted activities. These rights are guaranteed by no less
than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section
2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with
hallowed pronouncements defending and promoting the peoples exercise of these
rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already
upheld the right to assembly and petition and even went as far as to acknowledge:

It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater, the grievance and the more intense the feeling, the
less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every
instance of such disorderly conduct by individual members of a crowd as an
excuse to characterize the assembly as a seditious and tumultuous rising against
the authorities, then the right to assemble and to petition for redress of grievances

would expose all those who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor,
but the utmost discretion must be exercised in drawing the line between disorderly
and seditious conduct and between an essentially peaceable assembly and a
tumultuous uprising.

Again, in Primicias v. Fugoso, the Court likewise sustained the primacy of


freedom of speech and to assembly and petition over comfort and convenience in
the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is


not absolute. In Primicias, this Court said:

The right to freedom of speech, and to peacefully assemble and petition


the government for redress of grievances, are fundamental personal rights of the
people recognized and guaranteed by the constitutions of democratic countries.
But it is a settled principle growing out of the nature of well-ordered civil
societies that the exercise of those rights is not absolute for it may be so regulated
that it shall not be injurious to the equal enjoyment of others having equal rights,
nor injurious to the rights of the community or society. The power to regulate the
exercise of such and other constitutional rights is termed the sovereign police
power, which is the power to prescribe regulations, to promote the health,
morals, peace, education, good order or safety, and general welfare of the people.
This sovereign police power is exercised by the government through its legislative
branch by the enactment of laws regulating those and other constitutional and
civil rights, and it may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies called municipal
and city councils enact ordinances for purpose

Reyes v. Bagatsing further expounded on the right and its limits, as


follows:
1. It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the denial of a
permit. The Constitution is quite explicit: No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to

assemble and petition the Government for redress of grievances. Free speech,
like free press, may be identified with the liberty to discuss publicly and truthfully
any matter of public concern without censorship or punishment. There is to be
then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger of a substantive evil that
[the State] has a right to prevent. Freedom of assembly connotes the right of the
people to meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and respect. It is not to
be limited, much less denied, except on a showing, as is the case with freedom of
expression, of a clear and present danger of a substantive evil that the state has a
right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had
occasion to stress that it is a necessary consequence of our republican institutions
and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v.
Collins, it was not by accident or coincidence that the rights to freedom of speech
and of the press were coupled in a single guarantee with the right of the people
peaceably to assemble and to petition the government for redress of grievances.
All these rights, while not identical, are inseparable. In every case, therefore,
where there is a limitation placed on the exercise of this right, the judiciary is
called upon to examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both
grave and imminent, of a serious evil to public safety, public morals, public
health, or any other legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and


peaceable assembly better expressed than in this excerpt from an opinion of
Justice Frankfurter: It must never be forgotten, however, that the Bill of Rights
was the child of the Enlightenment. Back of the guaranty of free speech lay faith
in the power of an appeal to reason by all the peaceful means for gaining access to
the mind. It was in order to avert force and explosions due to restrictions upon
rational modes of communication that the guaranty of free speech was given a
generous scope. But utterance in a context of violence can lose its significance as
an appeal to reason and become part of an instrument of force. Such utterance was
not meant to be sheltered by the Constitution. What was rightfully stressed is the
abandonment of reason, the utterance, whether verbal or printed, being in a
context of violence. It must always be remembered that this right likewise
provides for a safety valve, allowing parties the opportunity to give vent to their
views, even if contrary to the prevailing climate of opinion. For if the peaceful
means of communication cannot be availed of, resort to non-peaceful means may
be the only alternative. Nor is this the sole reason for the expression of dissent. It
means more than just the right to be heard of the person who feels aggrieved or
who is dissatisfied with things as they are. Its value may lie in the fact that there

may be something worth hearing from the dissenter. That is to ensure a true
ferment of ideas. There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of protest, much
less preach rebellion under the cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or assembly. Resort to force is ruled out and
outbreaks of violence to be avoided. The utmost calm though is not required. As
pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: It is rather to be expected that more or less disorder will mark
the public assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievance and the more intense the feeling, the less
perfect, as a rule, will be the disciplinary control of the leaders over their
irresponsible followers. It bears repeating that for the constitutional right to be
invoked, riotous conduct, injury to property, and acts of vandalism must be
avoided. To give free rein to ones destructive urges is to call for condemnation. It
is to make a mockery of the high estate occupied by intellectual liberty in our
scheme of values.

There can be no legal objection, absent the existence of a clear and present danger
of a substantive evil, on the choice of Luneta as the place where the peace rally
would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage of, Justice Roberts in Hague v. CIO: Whenever the title
of streets and parks may rest, they have immemorially been held in trust for the
use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights and liberties of citizens. The privilege of a citizen of
the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but must not, in the
guise of respondents, be abridged or denied. The above excerpt was quoted with
approval in Primicias v. Fugoso. Primicias made explicit what was implicit in
Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically
affirmed that plazas or parks and streets are outside the commerce of man and
thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza being a promenade for public use, which
certainly is not the only purpose that it could serve. To repeat, there can be no
valid reason why a permit should not be granted for the proposed march and rally
starting from a public park that is the Luneta.

4. Neither can there be any valid objection to the use of the streets to the
gates of the US embassy, hardly two blocks away at the Roxas Boulevard.
Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that
the then Mayor Fugoso of the City of Manila should grant a permit for a public
meeting at Plaza Miranda in Quiapo, this Court categorically declared: Our
conclusion finds support in the decision in the case of Willis Cox v. State of New
Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap.
145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained
from the selectmen of the town or from licensing committee, was construed by
the Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941) penned by Chief
Justice Hughes affirming the judgment of the State Supreme Court, held that a
statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of speech and
press, where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration of the
time, place, and manner of the parade or procession, with a view to conserving the
public convenience and of affording an opportunity to provide proper policing,
and are not invested with arbitrary discretion to issue or refuse license, * * *.
Nor should the point made by Chief Justice Hughes in a subsequent portion of
the opinion be ignored: Civil liberties, as guaranteed by the Constitution, imply
the existence of an organized society maintaining public order without which
liberty itself would be lost in the excesses of unrestricted abuses. The authority of
a municipality to impose regulations in order to assure the safety and convenience
of the people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding the
good order upon which they ultimately depend. The control of travel on the streets
of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances would be entitled to
protection.
xxx

6. x x x The principle under American doctrines was given utterance by Chief


Justice Hughes in these words: The question, if the rights of free speech and
peaceable assembly are to be preserved, is not as to the auspices under which the
meeting is held but as to its purpose; not as to the relations of the speakers, but
whether their utterances transcend the bounds of the freedom of speech which the
Constitution protects. There could be danger to public peace and safety if such a

gathering were marked by turbulence. That would deprive it of its peaceful


character. It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would be granted. It is
not, however, unfettered discretion. While prudence requires that there be a
realistic appraisal not of what may possibly occur but of what may probably
occur, given all the relevant circumstances, still the assumption especially so
where the assembly is scheduled for a specific public place is that the permit
must be for the assembly being held there. The exercise of such a right, in the
language of Justice Roberts, speaking for the American Supreme Court, is not to
be abridged on the plea that it may be exercised in some other place.

xxx

8. By way of a summary. [a] The applicants for a permit to hold an assembly


should inform the licensing authority of the date, the public place where and
the time when it will take place. [b] If it were a private place, only the consent
of the owner or the one entitled to its legal possession is required. [c] Such
application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of
the permit or to its grant but at another public place. [d] It is an
indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. [e] If he is of the
view that there is such an imminent and grave danger of a substantive evil,
the applicants must be heard on the matter. [f] Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, they can have recourse to the proper judicial
authority. Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be
too strongly stressed that on the judiciary, -- even more so than on the other
departments rests the grave and delicate responsibility of assuring respect for
and deference to such preferred rights. No verbal formula, no sanctifying phrase
can, of course, dispense with what has been so felicitously termed by Justice
Holmes as the sovereign prerogative of judgment. Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy. x x x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing

B.P. No. 880

(G.R. No. L-65366,


November 9, 1983,
125 SCRA 553, 569)

8. By way of a summary.
The applicants for a permit to
hold an assembly should
inform the licensing authority
of the date, the public place
where and the time when it
will take place. If it were a
private place, only the
consent of the owner or the
one entitled to its legal
possession is required. Such
application should be filed
well ahead in time to enable
the public official concerned
to appraise whether there
may be valid objections to
the grant of the permit or to
its grant but at another public
place. It is an indispensable
condition to such refusal or
modification that the clear
and present danger test be the
standard for the decision
reached. If he is of the view
that there is such an
imminent and grave danger
of a substantive evil, the
applicants must be heard on
the matter. Thereafter, his
decision, whether favorable

Sec. 4. Permit when


required and when not
required.-- A written permit
shall be required for any
person or persons to
organize and hold a public
assembly in a public place.
However, no permit shall
be required if the public
assembly shall be done or
made in a freedom park
duly established by law or
ordinance or in private
property, in which case
only the consent of the
owner or the one entitled to
its legal possession is
required, or in the campus
of a government-owned
and operated educational
institution which shall be
subject to the rules and
regulations of said
educational institution.
Political meetings or rallies
held during any election
campaign period as
provided for by law are not
covered by this Act.
Sec. 5. Application

or adverse, must be
transmitted to them at the
earliest opportunity. Thus if
so minded, they can have
recourse to the proper judicial
authority.

requirements.-- All
applications for a permit
shall comply with the
following guidelines:
(a) The applications
shall be in writing and shall
include the names of the
leaders or organizers; the
purpose of such public
assembly; the date, time
and duration thereof, and
place or streets to be used
for the intended activity;
and the probable number of
persons participating, the
transport and the public
address systems to be used.
(b) The application shall
incorporate the duty and
responsibility of applicant
under Section 8 hereof.
(c) The application shall
be filed with the office of
the mayor of the city or
municipality in whose
jurisdiction the intended
activity is to be held, at
least five (5) working days
before the scheduled public
assembly.
(d) Upon receipt of the
application, which must be
duly acknowledged in
writing, the office of the
city or municipal mayor
shall cause the same to
immediately be posted at a
conspicuous place in the
city or municipal building.

Sec. 6. Action to be
taken on the application.
(a) It shall be the duty of
the mayor or any official
acting in his behalf to issue
or grant a permit unless
there is clear and
convincing evidence that
the public assembly will
create a clear and present
danger to public order,
public safety, public
convenience, public morals
or public health.
(b) The mayor or any
official acting in his behalf
shall act on the application
within two (2) working
days from the date the
application was filed,
failing which, the permit
shall be deemed granted.
Should for any reason the
mayor or any official
acting in his behalf refuse
to accept the application
for a permit, said
application shall be posted
by the applicant on the
premises of the office of
the mayor and shall be
deemed to have been filed.
(c) If the mayor is of the
view that there is imminent
and grave danger of a
substantive evil warranting
the denial or modification
of the permit, he shall
immediately inform the
applicant who must be

heard on the matter.


(d) The action on the
permit shall be in writing
and served on the
applica[nt] within twentyfour hours.
(e) If the mayor or any
official acting in his behalf
denies the application or
modifies the terms thereof
in his permit, the applicant
may contest the decision in
an appropriate court of law.
(f) In case suit is brought
before the Metropolitan
Trial Court, the Municipal
Trial Court, the Municipal
Circuit Trial Court, the
Regional Trial Court, or the
Intermediate Appellate
Court, its decisions may be
appealed to the appropriate
court within forty-eight
(48) hours after receipt of
the same. No appeal bond
and record on appeal shall
be required. A decision
granting such permit or
modifying it in terms
satisfactory to the applicant
shall be immediately
executory.
(g) All cases filed in
court under this section
shall be decided within
twenty-four (24) hours
from date of filing. Cases
filed hereunder shall be
immediately endorsed to
the executive judge for
disposition or, in his

absence, to the next in


rank.
(h) In all cases, any
decision may be appealed
to the Supreme Court.
(i) Telegraphic appeals
to be followed by formal
appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
assemblies but a restriction that simply regulates the time, place and manner
of the assemblies. This was adverted to in Osmea v. Comelec,48 where the Court
referred to it as a content-neutral regulation of the time, place, and manner of
holding public assemblies.49

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all
kinds of public assemblies50 that would use public places. The reference to
lawful cause does not make it content-based because assemblies really have to
be for lawful causes, otherwise they would not be peaceable and entitled to
protection. Neither are the words opinion, protesting and influencing in the
definition of public assembly content based, since they can refer to any subject.
The words petitioning the government for redress of grievances come from the
wording of the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyists and is independent of the
content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and
present danger to public order, public safety, public convenience, public morals or
public health. This is a recognized exception to the exercise of the right even
under the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights.

Neither is the law overbroad. It regulates the exercise of the right to peaceful
assembly and petition only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is
not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and
sufficient standard the clear and present danger test stated in Sec. 6(a). The
reference to imminent and grave danger of a substantive evil in Sec. 6(c)
substantially means the same thing and is not an inconsistent standard. As to
whether respondent Mayor has the same power independently under Republic Act
No. 716051 is thus not necessary to resolve in these proceedings, and was not
pursued by the parties in their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an
alternative forum through the creation of freedom parks where no prior permit is
needed for peaceful assembly and petition at any time:

Sec. 15. Freedom parks. Every city and municipality in the country shall
within six months after the effectivity of this Act establish or designate at least
one suitable freedom park or mall in their respective jurisdictions which, as far
as practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of any
prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors


shall establish the freedom parks within the period of six months from the
effectivity this Act.

The Court now comes to the matter of the CPR. As stated earlier, the
Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum tolerance
policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent
Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

The truth of the matter is the policy of calibrated preemptive response is


in consonance with the legal definition of maximum tolerance under Section 3
(c) of B.P. Blg. 880, which is the highest degree of restraint that the military,
police and other peacekeeping authorities shall observe during a public assembly
or in the dispersal of the same. Unfortunately, however, the phrase maximum
tolerance has acquired a different meaning over the years. Many have taken it to
mean inaction on the part of law enforcers even in the face of mayhem and
serious threats to public order. More so, other felt that they need not bother secure
a permit when holding rallies thinking this would be tolerated. Clearly, the
popular connotation of maximum tolerance has departed from its real essence
under B.P. Blg. 880.

It should be emphasized that the policy of maximum tolerance is provided


under the same law which requires all pubic assemblies to have a permit, which
allows the dispersal of rallies without a permit, and which recognizes certain
instances when water cannons may be used. This could only mean that maximum
tolerance is not in conflict with a no permit, no rally policy or with the
dispersal and use of water cannons under certain circumstances for indeed, the
maximum amount of tolerance required is dependent on how peaceful or unruly a
mass action is. Our law enforcers should calibrate their response based on the
circumstances on the ground with the view to preempting the outbreak of
violence.

Thus, when I stated that calibrated preemptive response is being enforced


in lieu of maximum tolerance I clearly was not referring to its legal definition but
to the distorted and much abused definition that it has now acquired. I only
wanted to disabuse the minds of the public from the notion that law enforcers
would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would no
longer be lax in enforcing the law but would henceforth follow it to the letter.
Thus I said, we have instructed the PNP as well as the local government units to
strictly enforce a no permit, no rally policy . . . arrest all persons violating the

laws of the land . . . unlawful mass actions will be dispersed. None of these is at
loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus
absurd for complainants to even claim that I ordered my co-respondents to violate
any law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights
of our people, especially freedom of expression and freedom of assembly. For this
reason, the so-called calibrated preemptive response policy has no place in our
legal firmament and must be struck down as a darkness that shrouds freedom. It
merely confuses our people and is used by some police agents to justify abuses.
On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does
not curtail or unduly restrict freedoms; it merely regulates the use of public places
as to the time, place and manner of assemblies. Far from being insidious,
maximum tolerance is for the benefit of rallyists, not the government. The
delegation to the mayors of the power to issue rally permits is valid because it is
subject to the constitutionally-sound clear and present danger standard.

WHEREFORE, the petitions are GRANTED in part, and Calibrated


Preemptive Response (CPR), insofar as it would purport to differ from or be in
lieu of maximum tolerance, is NULL and VOID and respondents are
ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the
requirements of maximum tolerance.
Read:

1. Right of assembly..31 SCRA 734 and 742


2. Evangelista vs. Earnshaw, 57 Phil 255
3. Primicias vs. Fuguso, 80 Phil. 71
4. De la Cruz vs. Ela, 99 Phil. 346
5. Navarro vs. Villegas, 31 SCRA 731
6. Philippine Blooming Mills Case,51 SCRA 189
7. Reyes vs. Bagatsing, 125 SCRA 553;see guidelines
8. Ruiz vs. Gordon, 126 SCRA 233

9. Villar vs. TIP, 135 SCRA 705


10. Malabanan vs. Ramento, 129 SCRA 359
11. Carpio vs. Guevara, 106 SCRA 685
12. Nestle' Phils. vs. Sanchez, 154 SCRA 542
13. Arreza vs. Araneta University Foundation, 137 SCRA 94

6. Freedom from prior restraint

Closing a radio station is definitely prior restraint

NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED


BROADCASTING SYSTEM, INC.HON. CEASAR G. DY, FELICISIMO G.
MEER, BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA and THE
CITY OF CAUAYAN, G.R. Nos. 170270 &179411, April 2, 2009
Tinga, J.:

Bombo Radyo Philippines (Bombo Radyo) operates several radio


stations under the AM and FM band throughout the Philippines. These stations are
operated by corporations organized and incorporated by Bombo Radyo,
particularly petitioners Newsounds Broadcasting Network, Inc. (Newsounds)
and Consolidated Broadcasting System, Inc. (CBS). Among the stations run by
Newsounds is Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast
station operating out of Cauayan City, Isabela. CBS, in turn, runs Star FM DWIT
Cauayan (Star FM), also operating out of Cauayan City, airing on the FM band.
The service areas of DZNC and Star FM extend from the province of Isabela to
throughout Region II and the Cordillera region.52[6] THE ONLY OTHER
STATION OPERATING IN CAUAYAN CITY, ISABELA, is owned by the
family of respondent Mayor Dy.

In 1996, Newsounds commenced relocation of its broadcasting stations,


management office and transmitters on property located in Minante 2, Cauayan

City, Isabela. The property is owned by CBS Development Corporation (CDC),


an affiliate corporation under the Bombo Radyo network which holds title over
the properties used by Bombo Radyo stations throughout the country.53[7] On 28
June 1996, CDC was issued by the then municipal government of Cauayan a
building permit authorizing the construction of a commercial establishment on the
property.54[8] On 5 July 1996, the Housing and Land Use Regulatory Board
(HLURB) issued a Zoning Decision certifying the property as commercial.55[9]
That same day, the Office of the Municipal Planning and Development
Coordinator (OMPDC) of Cauayan affirmed that the commercial structure to be
constructed by CDC conformed to local zoning regulations, noting as well that the
location is classified as a Commercial area.56[10] Similar certifications would be
issued by OMPDC from 1997 to 2001.57[11]

A building was consequently erected on the property, and therefrom, DZNC and
Star FM operated as radio stations. Both stations successfully secured all
necessary operating documents, including mayors permits from 1997 to
2001.58[12] During that period, CDC paid real property taxes on the property based
on the classification of the land as commercial.59[13]

All that changed beginning in 2002. On 15 January of that year, petitioners


applied for the renewal of the mayors permit. The following day, the City
Assessors Office in Cauayan City noted on CDCs Declaration of Real Property
filed for 2002 confirmed that based on the existing file, CDCs property was
classified as commercial.60[14] On 28 January, representatives of petitioners
formally requested then City Zoning Administrator-Designate Bagnos Maximo
(Maximo) to issue a zoning clearance for the property.61[15] Maximo, however,
required petitioners to submit either an approved land conversion papers from
the Department of Agrarian Reform (DAR) showing that the property was
converted from prime agricultural land to commercial land, or an approved
resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing
the re-classification of the property from agricultural to commercial land.62[16]
Petitioners had never been required to submit such papers before, and from 1996
to 2001, the OMPDC had consistently certified that the property had been
classified as commercial. THEREAFTER, THE MUNICIPAL OFFICIALS
PADLOCKED THE RADIO STATIONS BASED ON THE GROUND THAT
THE PETITIONERS FAILED TO SUBMIT THE requisite zoning clearance
needed for the issuance of the mayors permit because there was allegedly no
DAR Decision converting said land from agricultural to commercial.

Petitioners filed a petition for mandamus, docketed as SCA No. 20-171,


with the RTC of Cauayan City, Branch 20 to compel the municipality to allow the
radio stations to operate. The petition was accompanied by an application for the
issuance of temporary restraining order and writ of preliminary prohibitory
injunction, both provisional reliefs being denied by the RTC through an Order
dated 20 April 2004. Thereafter, the petition was dismissed by the RTC as well as
the Court of Appeals.

Hence, this case before the Supreme Court.

I S S U E:

Is the closure of the petitioners radio stations constitutional?

HELD:

The closure constitutes prior restraint.


The fundamental constitutional principle that informs our analysis of both
petitions is the freedom of speech, of expression or the press.63[32] Free speech and
free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship and punishment. There is to be no
previous restraint on the communication of views or subsequent liability whether
in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger of substantive evil that
Congress has a right to prevent.64[33]

Petitioners have taken great pains to depict their struggle as a textbook case of
denial of the right to free speech and of the press. In their tale, there is undeniable
political color. They admit that in 2001, Bombo Radyo was aggressive in
exposing the widespread election irregularities in Isabela that appear to have
favored respondent Dy and other members of the Dy political dynasty.65[34]
Respondent Ceasar Dy is the brother of Faustino Dy, Jr., governor of Isabela from
2001 until he was defeated in his re-election bid in 2004 by Grace Padaca, a

former assistant station manager at petitioners own DZNC Bombo Radyo.66[35] A


rival AM radio station in Cauayan City, DWDY, is owned and operated by the Dy
family.67[36] Petitioners likewise direct our attention to a 20 February 2004 article
printed in the Philippine Daily Inquirer where Dy is quoted as intending to file
disenfranchisement proceedings against DZNC-AM.68[37]

The following undisputed facts bring the issue of free expression to fore.
Petitioners are authorized by law to operate radio stations in Cauayan City, and
had been doing so for some years undisturbed by local authorities. Beginning in
2002, respondents in their official capacities have taken actions, whatever may be
the motive, that have impeded the ability of petitioners to freely broadcast, if not
broadcast at all. These actions have ranged from withholding permits to operate to
the physical closure of those stations under color of legal authority. While once
petitioners were able to broadcast freely, the weight of government has since bore
down upon them to silence their voices on the airwaves. An elementary school
child with a basic understanding of civics lessons will recognize that free speech
animates these cases.

Without taking into account any extenuating circumstances that may favor the
respondents, we can identify the bare acts of closing the radio stations or
preventing their operations as an act of prior restraint against speech, expression
or of the press. Prior restraint refers to official governmental restrictions on
the press or other forms of expression in advance of actual publication or
dissemination.69[38] While any system of prior restraint comes to court bearing
a heavy burden against its constitutionality,70[39] not all prior restraints on
speech are invalid.71[40]

That the acts imputed against respondents constitute a prior restraint on


the freedom of expression of respondents who happen to be members of the press
is clear enough. There is a long-standing tradition of special judicial solicitude for
free speech, meaning that governmental action directed at expression must satisfy
a greater burden of justification than governmental action directed at most other
forms of behavior.72[41] We had said in SWS v. COMELEC: Because of the
preferred status of the constitutional rights of speech, expression, and the press,
such a measure is vitiated by a weighty presumption of invalidity. Indeed, any
system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity. . . . The Government 'thus carries a
heavy burden of showing justification for the enforcement of such restraint.
There is thus a reversal of the normal presumption of validity that inheres in every
legislation.73[42]

At the same time, jurisprudence distinguishes between a contentneutral regulation, i.e., merely concerned with the incidents of the speech, or one
that merely controls the time, place or manner, and under well defined
standards; and a content-based restraint or censorship, i.e., the restriction is
based on the subject matter of the utterance or speech.74[43] Content-based laws are
generally treated as more suspect than content-neutral laws because of judicial
concern with discrimination in the regulation of expression.75[44] Content-neutral
regulations of speech or of conduct that may amount to speech, are subject to
lesser but still heightened scrutiny.76[45]

Ostensibly, the act of an LGU requiring a business of proof that the


property from which it operates has been zoned for commercial use can be
argued, when applied to a radio station, as content-neutral since such a regulation
would presumably apply to any other radio station or business enterprise within
the LGU.

However, the circumstances of this case dictate that we view the action of the
respondents as a content-based restraint. In their petition for mandamus filed with
the RTC, petitioners make the following relevant allegations:

6.1. With specific reference to DZNC, Newsounds, to this date, is engaged in


discussing public issues that include, among others, the conduct of public officials
that are detrimental to the constituents of Isabela, including Cauayan City. In view
of its wide coverage, DZNC has been a primary medium for the exercise of the
people of Isabela of their constitutional right to free speech. Corollarily, DZNC
has always been at the forefront of the struggle to maintain and uphold freedom of
the press, and the peoples corollary right to freedom of speech, expression and
petition the government for redress of grievances.

6.2. Newsounds only rival AM station in Cauayan and the rest of Isabela,
DWDY, is owned and operated by the family of respondent Dy.77[46]

xxxx

35. Respondents closure of petitioners radio stations is clearly tainted with ill
motives.
35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was
aggressive in exposing the widespread election irregularities in Isabela that appear
to have favored respondent Dy and other members of the Dy political dynasty. It
is just too coincidental that it was only after the 2001 elections (i.e., 2002) that the
Mayors Office started questioning petitioners applications for renewal of their
mayors permits.
35.2. In an article found in the Philippine Daily inquirer dated 20 February
2004, respondent Dy was quoted as saying that he will disenfranchise the radio
station. Such statement manifests and confirms that respondents denial of
petitioners renewal applications on the ground that the Property is commercial is
merely a pretext and that their real agenda is to remove petitioners from Cauayan
City and suppress the latters voice. This is a blatant violation of the petitioners
constitutional right to press freedom.

35.3. The timing of respondents closure of petitioners radio stations is also


very telling. The closure comes at a most critical time when the people are set to
exercise their right of suffrage. Such timing emphasizes the ill motives of
respondents.78[47]
All those circumstances lead us to believe that the steps employed by
respondents to ultimately shut down petitioners radio station were ultimately
content-based. The United States Supreme Court generally treats restriction of the
expression of a particular point of view as the paradigm violation of the First
Amendment.79[53] The facts confronting us now could have easily been drawn up
by a constitutional law professor eager to provide a plain example on how free
speech may be violated.

The Court is of the position that the actions of the respondents warrant
heightened or strict scrutiny from the Court, the test which we have deemed
appropriate in assessing content-based restrictions on free speech, as well as for
laws dealing with freedom of the mind or restricting the political process, of laws
dealing with the regulation of speech, gender, or race as well as other fundamental
rights as expansion from its earlier applications to equal protection.80[54] The
immediate implication of the application of the strict scrutiny test is that the
burden falls upon respondents as agents of government to prove that their actions
do not infringe upon petitioners constitutional rights. As content regulation

cannot be done in the absence of any compelling reason,81[55] the burden lies with
the government to establish such compelling reason to infringe the right to free
expression.

It is thus evident that respondents had no valid cause at all to even require
petitioners to secure approved land conversion papers from the DAR showing
that the property was converted from prime agricultural land to commercial land.
That requirement, assuming that it can be demanded by a local government in the
context of approving mayors permits, should only obtain upon clear proof that
the property from where the business would operate was classified as agricultural
under the LGUs land use plan or zoning ordinances and other relevant laws. No
evidence to that effect was presented by the respondents either to the petitioners,
or to the courts.

Having established that respondents had violated petitioners legal and


constitutional rights, let us now turn to the appropriate reliefs that should be
granted.

We turn to the issue of damages. Petitioners had sought to recover from


respondents P8 Million in temperate damages, P1 Million in exemplary damages,
and P1 Million in attorneys fees. Given respondents clear violation of
petitioners constitutional guarantee of free expression, the right to damages from
respondents is squarely assured by Article 32 (2) of the Civil Code, which
provides:

Art. 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
impairs any of the following rights and liberties of another person shall be liable
to the latter for damages:
xxxx
(2) Freedom of speech;
We noted in Lim v. Ponce de Leon that [p]ublic officials in the past have
abused their powers on the pretext of justifiable motives or good faith in the
performance of their duties [and] the object of [Article 32 of the Civil Code] is
to put an end to official abuse by plea of the good faith.82[85] The application of

Article 32 not only serves as a measure of pecuniary recovery to mitigate the


injury to constitutional rights, it likewise serves notice to public officers and
employees that any violation on their part of any persons guarantees under the
Bill of Rights will meet with final reckoning.
The present prayer for temperate damages is premised on the existence of
pecuniary injury to petitioner due to the actions of respondents, the amount of
which nevertheless being difficult to prove.83[86] Temperate damages avail when
the court finds that some pecuniary loss has been suffered but its amount can not,
from the nature of the case, be proved with certainty.84[87] The existence of
pecuniary injury at bar cannot be denied. Petitioners had no way of knowing it
when they filed their petition, but the actions of respondents led to the closure of
their radio stations from June 2004 until this Court issued a writ of preliminary
injunction in January 2006.85[88] The lost potential income during that one and a
half year of closure can only be presumed as substantial enough. Still, despite that
fact, possibly unanticipated when the original amount for claimed temperate
damages was calculated, petitioners have maintained before this Court the same
amount, P8 Million, for temperate damages. The said amount is reasonable under
the circumstances.86[89]
Exemplary damages can be awarded herein, since temperate damages are
available. Public officers who violate the Constitution they are sworn to uphold
embody a poison of wickedness that may not run through the body politic.87[90]
Respondents, by purposely denying the commercial character of the property in
order to deny petitioners the exercise of their constitutional rights and their
business, manifested bad faith in a wanton, fraudulent, oppressive and malevolent
manner.88[91] The amount of exemplary damages need not be proved where it is
shown that plaintiff is entitled to temperate damages,89[92] and the sought for
amount of P1 Million is more than appropriate. We likewise deem the prayer for
P1 Million in attorneys fees as suitable under the circumstances.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the
Court of Appeals and the Regional Trial Court of Cauayan City, Branch 24, are
hereby reversed and set aside.
Suspension for three (3) months of TV Host, as well as his own TV Program held not prior
restraint.

BRO. ELISEO SORIANO VS. MOVIE And television review and


classification board, G.R. No. 164785, April 29, 2009

VELASCO, JR., J.:

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang
Dating Daan, aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang


babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana
ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol
pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.

Two days after, before the MTRCB, separate but almost identical
affidavit-complaints were lodged by Jessie L. Galapon and seven other private
respondents, all members of the Iglesia ni Cristo (INC), against petitioner in
connection with the above broadcast. Respondent Michael M. Sandoval, who felt
directly alluded to in petitioners remark, was then a minister of INC and a regular
host of the TV program Ang Tamang Daan.90[3] Forthwith, the MTRCB sent
petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use
of some cuss words in the August 10, 2004 episode of Ang Dating Daan.91[4]

After a preliminary conference in which petitioner appeared, the MTRCB,


by Order of August 16, 2004, preventively suspended the showing of Ang Dating
Daan program for 20 days, in accordance with Section 3(d) of Presidential Decree
No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the
2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII
of the MTRCB Rules of Procedure.92[5] The same order also set the case for
preliminary investigation.

The following day, petitioner sought reconsideration of the preventive


suspension order, praying that Chairperson Consoliza P. Laguardia and two other
members of the adjudication board recuse themselves from hearing the case.93[6]
Two days after, however, petitioner sought to withdraw94[7] his motion for
reconsideration, followed by the filing with this Court of a petition for certiorari
and prohibition,95[8] docketed as G.R. No. 164785, to nullify the preventive
suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a
decision, disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby


rendered, finding respondent Soriano liable for his utterances and thereby
imposing on him a penalty of three (3) months suspension from his program,
Ang Dating Daan.

SO ORDERED.96[9]

Petitioner then filed this petition for certiorari and prohibition with prayer
for injunctive relief, docketed as G.R. No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY


RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST THE
TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID
FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION

BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE


ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;

BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;

FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND

FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.97[10]

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND


ENACTED WITHOUT OR IN EXCESS OF JURISDICTION x x x
CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY


INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF
RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES OF THE
NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS,
RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND
ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH;
II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY


INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS
OF LAW AND EQUAL PROTECTION UNDER THE LAW; CONSEQUENTLY,
THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER
2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;
AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR
A SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY
RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY
REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR
VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES
OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER
DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM
AS APPLIED IN THE CASE AT BENCH98[11]

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the
assailed order of preventive suspension, although its implementability had already
been overtaken and veritably been rendered moot by the equally assailed
September 27, 2004 decision.

It is petitioners threshold posture that the preventive suspension imposed


against him and the relevant IRR provision authorizing it are invalid inasmuch as
PD 1986 does not expressly authorize the MTRCB to issue preventive suspension.

Petitioners contention is untenable.

Administrative agencies have powers and functions which may be


administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a
mix of the five, as may be conferred by the Constitution or by statute.99[12] They
have in fine only such powers or authority as are granted or delegated, expressly
or impliedly, by law.100[13] And in determining whether an agency has certain
powers, the inquiry should be from the law itself. But once ascertained as
existing, the authority given should be liberally construed.101[14]

A perusal of the MTRCBs basic mandate under PD 1986 reveals the


possession by the agency of the authority, albeit impliedly, to issue the challenged

order of preventive suspension. And this authority stems naturally from, and is
necessary for the exercise of, its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.The BOARD shall have the following


functions, powers and duties:
xxxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit
the x x x production, x x x exhibition and/or television broadcast of the motion
pictures, television programs and publicity materials subject of the preceding
paragraph, which, in the judgment of the board applying contemporary Filipino
cultural values as standard, are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of
the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of wrong or crime such as but not limited to:

xxxx
vi) Those which are libelous or defamatory to the good name and reputation of
any person, whether living or dead;
xxxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x
production, copying, distribution, sale, lease, exhibition, and/or television
broadcast of all motion pictures, television programs and publicity materials, to
the end that no such pictures, programs and materials as are determined by
the BOARD to be objectionable in accordance with paragraph (c) hereof shall be
x x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or
broadcast by television;
xxxx
k) To exercise such powers and functions as may be necessary or incidental to
the attainment of the purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of


the MTRCBs authority and functions expressly set forth in PD 1986, more
particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB to
supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition,
and/or television broadcast of all motion pictures, television programs and
publicity materials, to the end that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c)
hereof shall be x x x exhibited and/or broadcast by television.

Surely, the power to issue preventive suspension forms part of the


MTRCBs express regulatory and supervisory statutory mandate and its
investigatory and disciplinary authority subsumed in or implied from such
mandate. Any other construal would render its power to regulate, supervise, or
discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being


merely a preliminary step in an administrative investigation.102[15] And the power
to discipline and impose penalties, if granted, carries with it the power to
investigate administrative complaints and, during such investigation, to
preventively suspend the person subject of the complaint.103[16]

To reiterate, preventive suspension authority of the MTRCB springs from


its powers conferred under PD 1986. The MTRCB did not, as petitioner
insinuates, empower itself to impose preventive suspension through the medium
of the IRR of PD 1986. It is true that the matter of imposing preventive
suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the
IRR provides:
Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the
pendency of the case, and in order to prevent or stop further violations or for the
interest and welfare of the public, the Chairman of the Board may issue a
Preventive Suspension Order mandating the preventive x x x suspension of the
permit/permits involved, and/or closure of the x x x television network, cable TV
station x x x provided that the temporary/preventive order thus issued shall have a
life of not more than twenty (20) days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986,


without more, would not work to deprive the MTRCB a basic disciplinary tool,
such as preventive suspension. Recall that the MTRCB is expressly empowered
by statute to regulate and supervise television programs to obviate the exhibition
or broadcast of, among others, indecent or immoral materials and to impose
sanctions for violations and, corollarily, to prevent further violations as it
investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR
neither amended PD 1986 nor extended the effect of the law. Neither did the
MTRCB, by imposing the assailed preventive suspension, outrun its authority
under the law. Far from it. The preventive suspension was actually done in
furtherance of the law, imposed pursuant, to repeat, to the MTRCBs duty of
regulating or supervising television programs, pending a determination of whether
or not there has actually been a violation. In the final analysis, Sec. 3, Chapter
XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit
impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case,
sufficient to authorize the MTRCBs assailed action. Petitioners restrictive
reading of PD 1986, limiting the MTRCB to functions within the literal confines
of the law, would give the agency little leeway to operate, stifling and rendering it
inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide
room for flexibility in its operation. Sec. 3(k), we reiterate, provides, To exercise
such powers and functions as may be necessary or incidental to the attainment of
the purposes and objectives of this Act x x x. Indeed, the power to impose
preventive suspension is one of the implied powers of MTRCB. As distinguished
from express powers, implied powers are those that can be inferred or are implicit
in the wordings or conferred by necessary or fair implication of the enabling
act.104[17] As we held in Angara v. Electoral Commission, when a general grant of
power is conferred or a duty enjoined, every particular power necessary for the
exercise of one or the performance of the other is also conferred by necessary
implication.105[18] Clearly, the power to impose preventive suspension pending
investigation is one of the implied or inherent powers of MTRCB.

We cannot agree with petitioners assertion that the aforequoted IRR


provision on preventive suspension is applicable only to motion pictures and
publicity materials. The scope of the MTRCBs authority extends beyond motion
pictures. What the acronym MTRCB stands for would suggest as much. And
while the law makes specific reference to the closure of a television network, the
suspension of a television program is a far less punitive measure that can be
undertaken, with the purpose of stopping further violations of PD 1986. Again,
the MTRCB would regretfully be rendered ineffective should it be subject to the
restrictions petitioner envisages.

Just as untenable is petitioners argument on the nullity of the preventive


suspension order on the ground of lack of hearing. As it were, the MTRCB
handed out the assailed order after petitioner, in response to a written notice,
appeared before that Board for a hearing on private respondents complaint. No
less than petitioner admitted that the order was issued after the adjournment of the
hearing,106[19] proving that he had already appeared before the MTRCB. Under
Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue
[a]ny time during the pendency of the case. In this particular case, it was done
after MTRCB duly apprised petitioner of his having possibly violated PD
1986107[20] and of administrative complaints that had been filed against him for
such violation.108[21]

At any event, that preventive suspension can validly be meted out even
without a hearing.109[22]
Petitioner next faults the MTRCB for denying him his right to the equal
protection of the law, arguing that, owing to the preventive suspension order, he
was unable to answer the criticisms coming from the INC ministers.

Petitioners position does not persuade. The equal protection clause


demands that all persons subject to legislation should be treated alike, under like
circumstances and conditions both in the privileges conferred and liabilities
imposed.110[23] It guards against undue favor and individual privilege as well as
hostile discrimination.111[24] Surely, petitioner cannot, under the premises, place
himself in the same shoes as the INC ministers, who, for one, are not facing
administrative complaints before the MTRCB. For another, he offers no proof that
the said ministers, in their TV programs, use language similar to that which he
used in his own, necessitating the MTRCBs disciplinary action. If the immediate
result of the preventive suspension order is that petitioner remains temporarily
gagged and is unable to answer his critics, this does not become a deprivation of
the equal protection guarantee. The Court need not belabor the fact that the
circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the
INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the
purview of this case, simply too different to even consider whether or not there is
a prima facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that
what he uttered was religious speech, adding that words like putang babae were
said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioners utterances in question


can come within the pale of Sec. 5, Article III of the 1987 Constitution on
religious freedom. The section reads as follows:

No law shall be made respecting the establishment of a religion, or


prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.

There is nothing in petitioners statements subject of the complaints


expressing any particular religious belief, nothing furthering his avowed
evangelical mission. The fact that he came out with his statements in a televised
bible exposition program does not automatically accord them the character of a
religious discourse. Plain and simple insults directed at another person cannot be
elevated to the status of religious speech.

G.R. No. 165636


Petitioner urges the striking down of the decision suspending him from
hosting Ang Dating Daan for three months on the main ground that the decision
violates, apart from his religious freedom, his freedom of speech and expression
guaranteed under Sec. 4, Art. III of the Constitution, which reads:

No law shall be passed abridging the freedom of speech, of expression, or


of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
unconstitutional for reasons articulated in this petition.

It is settled that expressions by means of newspapers, radio, television, and


motion pictures come within the broad protection of the free speech and
expression clause.112[25] Each method though, because of its dissimilar presence in
the lives of people and accessibility to children, tends to present its own problems
in the area of free speech protection, with broadcast media, of all forms of
communication, enjoying a lesser degree of protection.113[26] Just as settled is the
rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction
against publication or threat of cancellation of license/franchise, or subsequent
liability, whether in libel and damage suits, prosecution for sedition, or contempt
proceedings, are anathema to the freedom of expression. Prior restraint means
official government restrictions on the press or other forms of expression in
advance of actual publication or dissemination.114[27] The freedom of expression,
as with the other freedoms encased in the Bill of Rights, is, however, not absolute.
It may be regulated to some extent to serve important public interests, some forms
of speech not being protected. As has been held, the limits of the freedom of
expression are reached when the expression touches upon matters of essentially
private concern.115[28] In the oft-quoted expression of Justice Holmes, the
constitutional guarantee obviously was not intended to give immunity for every
possible use of language.116[29] From Lucas v. Royo comes this line: [T]he
freedom to express ones sentiments and belief does not grant one the license to
vilify in public the honor and integrity of another. Any sentiments must be
expressed within the proper forum and with proper regard for the rights of
others.117[30]

Indeed, as noted in Chaplinsky v. State of New Hampshire,118[31] there are


certain well-defined and narrowly limited classes of speech that are harmful, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. In net effect, some forms of speech are not protected by
the Constitution, meaning that restrictions on unprotected speech may be decreed
without running afoul of the freedom of speech clause.119[32] A speech would fall
under the unprotected type if the utterances involved are no essential part of any
exposition of ideas, and are of such slight social value as a step of truth that any
benefit that may be derived from them is clearly outweighed by the social interest
in order and morality.120[33] Being of little or no value, there is, in dealing with or
regulating them, no imperative call for the application of the clear and present
danger rule or the balancing-of-interest test, they being essentially modes of

weighing competing values,121[34] or, with like effect, determining which of the
clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of


speech.

The Court rules otherwise. It has been established in this jurisdiction that
unprotected speech or low-value expression refers to libelous statements,
obscenity or pornography, false or misleading advertisement, insulting or
fighting words, i.e., those which by their very utterance inflict injury or tend to
incite an immediate breach of peace and expression endangering national security.

The Court finds that petitioners statement can be treated as obscene, at


least with respect to the average child. Hence, it is, in that context, unprotected
speech. In Fernando v. Court of Appeals, the Court expressed difficulty in
formulating a definition of obscenity that would apply to all cases, but
nonetheless stated the ensuing observations on the matter:

There is no perfect definition of obscenity but the latest word is that


of Miller v. California which established basic guidelines, to wit: (a) whether to
the average person, applying contemporary standards would find the work, taken
as a whole, appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. But, it would be a serious misreading
of Miller to conclude that the trier of facts has the unbridled discretion in
determining what is patently offensive. x x x What remains clear is that
obscenity is an issue proper for judicial determination and should be treated on a
case to case basis and on the judges sound discretion.122[35]

Following the contextual lessons of the cited case of Miller v.


California,123[36] a patently offensive utterance would come within the pale of the
term obscenity should it appeal to the prurient interest of an average listener
applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of


the case reveal that to an average adult, the utterances Gago ka talaga x x x,
masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang
doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not
constitute obscene but merely indecent utterances. They can be viewed as figures
of speech or merely a play on words. In the context they were used, they may not
appeal to the prurient interests of an adult. The problem with the challenged
statements is that they were uttered in a TV program that is rated G or for
general viewership, and in a time slot that would likely reach even the eyes and
ears of children.

While adults may have understood that the terms thus used were not to be
taken literally, children could hardly be expected to have the same discernment.
Without parental guidance, the unbridled use of such language as that of petitioner
in a television broadcast could corrupt impressionable young minds. The term
putang babae means a female prostitute, a term wholly inappropriate for
children, who could look it up in a dictionary and just get the literal meaning,
missing the context within which it was used. Petitioner further used the terms,
ang gumagana lang doon yung ibaba, making reference to the female sexual
organ and how a female prostitute uses it in her trade, then stating that Sandoval
was worse than that by using his mouth in a similar manner. Children could be
motivated by curiosity and ask the meaning of what petitioner said, also without
placing the phrase in context. They may be inquisitive as to why Sandoval is
different from a female prostitute and the reasons for the dissimilarity. And upon
learning the meanings of the words used, young minds, without the guidance of
an adult, may, from their end, view this kind of indecent speech as obscene, if
they take these words literally and use them in their own speech or form their own
ideas on the matter. In this particular case, where children had the opportunity to
hear petitioners words, when speaking of the average person in the test for
obscenity, we are speaking of the average child, not the average adult. The
average child may not have the adults grasp of figures of speech, and may lack
the understanding that language may be colorful, and words may convey more
than the literal meaning. Undeniably the subject speech is very suggestive of a
female sexual organ and its function as such. In this sense, we find petitioners
utterances obscene and not entitled to protection under the umbrella of freedom of
speech.

Even if we concede that petitioners remarks are not obscene but merely indecent
speech, still the Court rules that petitioner cannot avail himself of the
constitutional protection of free speech. Said statements were made in a medium
easily accessible to children. With respect to the young minds, said utterances are
to be treated as unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But


while a jurisprudential pattern involving certain offensive utterances conveyed in
different mediums has emerged, this case is veritably one of first impression, it
being the first time that indecent speech communicated via television and the
applicable norm for its regulation are, in this jurisdiction, made the focal point.
Federal Communications Commission (FCC) v. Pacifica Foundation,124[37] a 1978
American landmark case cited in Eastern Broadcasting Corporation v. Dans,
Jr.125[38] and Chavez v. Gonzales,126[39] is a rich source of persuasive lessons.
Foremost of these relates to indecent speech without prurient appeal component
coming under the category of protected speech depending on the context within
which it was made, irresistibly suggesting that, within a particular context, such
indecent speech may validly be categorized as unprotected, ergo, susceptible to
restriction.

In FCC, seven of what were considered filthy words127[40] earlier recorded in a


monologue by a satiric humorist later aired in the afternoon over a radio station
owned by Pacifica Foundation. Upon the complaint of a man who heard the prerecorded monologue while driving with his son, FCC declared the language used
as patently offensive and indecent under a prohibiting law, though not
necessarily obscene. FCC added, however, that its declaratory order was issued in
a special factual context, referring, in gist, to an afternoon radio broadcast when
children were undoubtedly in the audience. Acting on the question of whether the
FCC could regulate the subject utterance, the US Supreme Court ruled in the
affirmative, owing to two special features of the broadcast medium, to wit: (1)
radio is a pervasive medium and (2) broadcasting is uniquely accessible to
children. The US Court, however, hastened to add that the monologue would be
protected speech in other contexts, albeit it did not expound and identify a
compelling state interest in putting FCCs content-based regulatory action under
scrutiny.

The Court in Chavez128[41] elucidated on the distinction between regulation or


restriction of protected speech that is content-based and that which is contentneutral. A content-based restraint is aimed at the contents or idea of the
expression, whereas a content-neutral restraint intends to regulate the time, place,
and manner of the expression under well-defined standards tailored to serve a
compelling state interest, without restraint on the message of the expression.
Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the
premises was, in one perspective, permissible restriction. We make this
disposition against the backdrop of the following interplaying factors: First, the
indecent speech was made via television, a pervasive medium that, to borrow
from Gonzales v. Kalaw Katigbak,129[42] easily reaches every home where there is
a set [and where] [c]hildren will likely be among the avid viewers of the programs
therein shown; second, the broadcast was aired at the time of the day when there
was a reasonable risk that children might be in the audience; and third, petitioner
uttered his speech on a G or for general patronage rated program. Under Sec.
2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is
[s]uitable for all ages, meaning that the material for television x x x in the
judgment of the BOARD, does not contain anything unsuitable for children and
minors, and may be viewed without adult guidance or supervision. The words
petitioner used were, by any civilized norm, clearly not suitable for children.
Where a language is categorized as indecent, as in petitioners utterances on a
general-patronage rated TV program, it may be readily proscribed as unprotected
speech.

A view has been advanced that unprotected speech refers only to


pornography,130[43] false or misleading advertisement,131[44] advocacy of imminent
lawless action, and expression endangering national security. But this list is not,
as some members of the Court would submit, exclusive or carved in stone.
Without going into specifics, it may be stated without fear of contradiction that
US decisional law goes beyond the aforesaid general exceptions. As the Court has
been impelled to recognize exceptions to the rule against censorship in the past,
this particular case constitutes yet another exception, another instance of
unprotected speech, created by the necessity of protecting the welfare of our
children. As unprotected speech, petitioners utterances can be subjected to
restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978,
petitioner asserts that his utterances must present a clear and present danger of
bringing about a substantive evil the State has a right and duty to prevent and such
danger must be grave and imminent.132[45]

Petitioners invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of
said test is uncalled for under the premises. The doctrine, first formulated by
Justice Holmes, accords protection for utterances so that the printed or spoken
words may not be subject to prior restraint or subsequent punishment unless its

expression creates a clear and present danger of bringing about a substantial evil
which the government has the power to prohibit.133[46] Under the doctrine, freedom
of speech and of press is susceptible of restriction when and only when necessary
to prevent grave and immediate danger to interests which the government may
lawfully protect. As it were, said doctrine evolved in the context of prosecutions
for rebellion and other crimes involving the overthrow of government.134[47] It was
originally designed to determine the latitude which should be given to speech that
espouses anti-government action, or to have serious and substantial deleterious
consequences on the security and public order of the community.135[48] The clear
and present danger rule has been applied to this jurisdiction.136[49] As a standard of
limitation on free speech and press, however, the clear and present danger test is
not a magic incantation that wipes out all problems and does away with analysis
and judgment in the testing of the legitimacy of claims to free speech and which
compels a court to release a defendant from liability the moment the doctrine is
invoked, absent proof of imminent catastrophic disaster.137[50] As we observed in
Eastern Broadcasting Corporation, the clear and present danger test does not
lend itself to a simplistic and all embracing interpretation applicable to all
utterances in all forums.138[51]

To be sure, the clear and present danger doctrine is not the only test which has
been applied by the courts. Generally, said doctrine is applied to cases involving
the overthrow of the government and even other evils which do not clearly
undermine national security. Since not all evils can be measured in terms of
proximity and degree the Court, however, in several casesAyer Productions v.
Capulong139[52] and Gonzales v. COMELEC,140[53] applied the balancing of interests
test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated
in his Separate Opinion that where the legislation under constitutional attack
interferes with the freedom of speech and assembly in a more generalized way
and where the effect of the speech and assembly in terms of the probability of
realization of a specific danger is not susceptible even of impressionistic
calculation,141[54] then the balancing of interests test can be applied.

The Court explained also in Gonzales v. COMELEC the balancing of interests


test:
When particular conduct is regulated in the interest of public order, and the
regulation results in an indirect, conditional, partial abridgment of speech, the
duty of the courts is to determine which of the two conflicting interests demands
the greater protection under the particular circumstances presented. x x x We
must, therefore, undertake the delicate and difficult task x x x to weigh the
circumstances and to appraise the substantiality of the reasons advanced in
support of the regulation of the free enjoyment of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social


values and individual interests competing for ascendancy in legislation which
restricts expression, the court in Douds laid the basis for what has been called the
balancing-of-interests test which has found application in more recent decisions
of the U.S. Supreme Court. Briefly stated, the balancing test requires a court to
take conscious and detailed consideration of the interplay of interests observable
in a given situation or type of situation.

xxx

Although the urgency of the public interest sought to be secured by Congressional


power restricting the individuals freedom, and the social importance and value of
the freedom so restricted, are to be judged in the concrete, not on the basis of
abstractions, a wide range of factors are necessarily relevant in ascertaining the
point or line of equilibrium. Among these are (a) the social value and importance
of the specific aspect of the particular freedom restricted by the legislation; (b) the
specific thrust of the restriction, i.e., whether the restriction is direct or indirect,
whether or not the persons affected are few; (c) the value and importance of the
public interest sought to be secured by the legislationthe reference here is to the
nature and gravity of the evil which Congress seeks to prevent; (d) whether the
specific restriction decreed by Congress is reasonably appropriate and necessary
for the protection of such public interest; and (e) whether the necessary
safeguarding of the public interest involved may be achieved by some other
measure less restrictive of the protected freedom.142[55]

This balancing of interest test, to borrow from Professor Kauper,143[56] rests on the
theory that it is the courts function in a case before it when it finds public
interests served by legislation, on the one hand, and the free expression clause
affected by it, on the other, to balance one against the other and arrive at a
judgment where the greater weight shall be placed. If, on balance, it appears that
the public interest served by restrictive legislation is of such nature that it
outweighs the abridgment of freedom, then the court will find the legislation
valid. In short, the balance-of-interests theory rests on the basis that constitutional
freedoms are not absolute, not even those stated in the free speech and expression
clause, and that they may be abridged to some extent to serve appropriate and
important interests.144[57] To the mind of the Court, the balancing of interest
doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)month suspension was slapped on him for breach of MTRCB rules. In this setting,
the assertion by petitioner of his enjoyment of his freedom of speech is ranged
against the duty of the government to protect and promote the development and
welfare of the youth.

After a careful examination of the factual milieu and the arguments raised by
petitioner in support of his claim to free speech, the Court rules that the
governments interest to protect and promote the interests and welfare of the
children adequately buttresses the reasonable curtailment and valid restraint on
petitioners prayer to continue as program host of Ang Dating Daan during the
suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a
State is the freedom of speech or expression, for without the enjoyment of such
right, a free, stable, effective, and progressive democratic state would be difficult
to attain. Arrayed against the freedom of speech is the right of the youth to their
moral, spiritual, intellectual, and social being which the State is constitutionally
tasked to promote and protect. Moreover, the State is also mandated to recognize
and support the vital role of the youth in nation building as laid down in Sec. 13,
Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility
on the State to provide protection to the youth against illegal or improper
activities which may prejudice their general well-being. The Article on youth,
approved on second reading by the Constitutional Commission, explained that the
State shall extend social protection to minors against all forms of neglect,
cruelty, exploitation, immorality, and practices which may foster racial, religious
or other forms of discrimination.145[58]

Indisputably, the State has a compelling interest in extending social protection to


minors against all forms of neglect, exploitation, and immorality which may
pollute innocent minds. It has a compelling interest in helping parents, through
regulatory mechanisms, protect their childrens minds from exposure to
undesirable materials and corrupting experiences. The Constitution, no less, in
fact enjoins the State, as earlier indicated, to promote and protect the physical,

moral, spiritual, intellectual, and social well-being of the youth to better prepare
them fulfill their role in the field of nation-building.146[59] In the same way, the
State is mandated to support parents in the rearing of the youth for civic efficiency
and the development of moral character.147[60]

Petitioners offensive and obscene language uttered in a television broadcast,


without doubt, was easily accessible to the children. His statements could have
exposed children to a language that is unacceptable in everyday use. As such, the
welfare of children and the States mandate to protect and care for them, as
parens patriae,148[61] constitute a substantial and compelling government interest in
regulating petitioners utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the
children who, because of age or interest capacity, are susceptible of being
corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read.


Although Cohens written message, [Fuck the Draft], might have been
incomprehensible to a first grader, Pacificas broadcast could have enlarged a
childs vocabulary in an instant. Other forms of offensive expression may be
withheld from the young without restricting the expression at its source.
Bookstores and motion picture theaters, for example, may be prohibited from
making indecent material available to children. We held in Ginsberg v. New York
that the governments interest in the well-being of its youth and in supporting
parents claim to authority in their own household justified the regulation of
otherwise protected expression. The ease with which children may obtain access
to broadcast material, coupled with the concerns recognized in Ginsberg, amply
justify special treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to
attend to the welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less


liberal approach calls for observance. This is so because unlike motion pictures
where the patrons have to pay their way, television reaches every home where
there is a set. Children then will likely will be among the avid viewers of the

programs therein shown. As was observed by Circuit Court of Appeals Judge


Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies
of the adult population. It cannot be denied though that the State as parens patriae
is called upon to manifest an attitude of caring for the welfare of the young.149[62]

The compelling need to protect the young impels us to sustain the regulatory
action MTRCB took in the narrow confines of the case. To reiterate, FCC justified
the restraint on the TV broadcast grounded on the following considerations: (1)
the use of television with its unique accessibility to children, as a medium of
broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the
G rating of the Ang Dating Daan program. And in agreeing with MTRCB, the
court takes stock of and cites with approval the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our


holding. This case does not involve a two-way radio conversation between a cab
driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not
decided that an occasional expletive in either setting would justify any sanction. x
x x The [FFCs] decision rested entirely on a nuisance rationale under which
context is all important. The concept requires consideration of a host of variables.
The time of day was emphasized by the [FFC]. The content of the program in
which the language is used will affect the composition of the audience x x x. As
Mr. Justice Sutherland wrote a nuisance may be merely a right thing in the wrong
place, like a pig in the parlor instead of the barnyard. We simply hold that when
the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory
power does not depend on proof that the pig is obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on


prime-time television are blatantly indecent if not outright obscene. It is the kind
of speech that PD 1986 proscribes necessitating the exercise by MTRCB of
statutory disciplinary powers. It is the kind of speech that the State has the
inherent prerogative, nay duty, to regulate and prevent should such action served
and further compelling state interests. One who utters indecent, insulting, or
offensive words on television when unsuspecting children are in the audience is,
in the graphic language of FCC, a pig in the parlor. Public interest would be
served if the pig is reasonably restrained or even removed from the parlor.

Ergo, petitioners offensive and indecent language can be subjected to prior


restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on
petitioner is an administrative sanction or subsequent punishment for his
offensive and obscene language in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and
presumed unconstitutional breaches of the freedom of speech. The exceptions to
prior restraint are movies, television, and radio broadcast censorship in view of its
access to numerous people, including the young who must be insulated from the
prejudicial effects of unprotected speech. PD 1986 was passed creating the Board
of Review for Motion Pictures and Television (now MTRCB) and which requires
prior permit or license before showing a motion picture or broadcasting a TV
program. The Board can classify movies and television programs and can cancel
permits for exhibition of films or television broadcast.

The power of MTRCB to regulate and even impose some prior restraint on radio
and television shows, even religious programs, was upheld in Iglesia Ni Cristo v.
Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court
wrote:

We thus reject petitioners postulate that its religious program is per se beyond
review by the respondent Board. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief. Television is a medium that
reaches even the eyes and ears of children. The Court iterates the rule that the
exercise of religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which the State is duty
bound to prevent, i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare. x x x

xxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD
1986] is unconstitutional for Congress to grant an administrative body quasijudicial power to preview and classify TV programs and enforce its decision
subject to review by our courts. As far back as 1921, we upheld this setup in Sotto
vs. Ruiz, viz:

The use of the mails by private persons is in the nature of a privilege


which can be regulated in order to avoid its abuse. Persons possess no absolute
right to put into the mail anything they please, regardless of its character.150[63]

Bernas adds:

Under the decree a movie classification board is made the arbiter of what
movies and television programs or parts of either are fit for public consumption. It
decides what movies are immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines or its people,
and what tend to incite subversion, insurrection, rebellion or sedition, or tend
to undermine the faith and confidence of the people in their government and/or
duly constituted authorities, etc. Moreover, its decisions are executory unless
stopped by a court.151[64]

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,152[65] it was held


that the power of review and prior approval of MTRCB extends to all television
programs and is valid despite the freedom of speech guaranteed by the
Constitution. Thus, all broadcast networks are regulated by the MTRCB since
they are required to get a permit before they air their television programs.
Consequently, their right to enjoy their freedom of speech is subject to that
requirement. As lucidly explained by Justice Dante O. Tinga, government
regulations through the MTRCB became a necessary evil with the government
taking the role of assigning bandwidth to individual broadcasters. The stations
explicitly agreed to this regulatory scheme; otherwise, chaos would result in the
television broadcast industry as competing broadcasters will interfere or co-opt
each others signals. In this scheme, station owners and broadcasters in effect
waived their right to the full enjoyment of their right to freedom of speech in
radio and television programs and impliedly agreed that said right may be subject
to prior restraintdenial of permit or subsequent punishment, like suspension or
cancellation of permit, among others.

The three (3) months suspension in this case is not a prior restraint on the
right of petitioner to continue with the broadcast of Ang Dating Daan as a
permit was already issued to him by MTRCB for such broadcast. Rather, the
suspension is in the form of permissible administrative sanction or
subsequent punishment for the offensive and obscene remarks he uttered on
the evening of August 10, 2004 in his television program, Ang Dating Daan. It
is a sanction that the MTRCB may validly impose under its charter without
running afoul of the free speech clause. And the imposition is separate and distinct
from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and
the remedies that may be availed of by the aggrieved private party under the
provisions on libel or tort, if applicable. As FCC teaches, the imposition of
sanctions on broadcasters who indulge in profane or indecent broadcasting does
not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is
not per se for petitioners exercise of his freedom of speech via television, but for
the indecent contents of his utterances in a G rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full
enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as
television station owners, program producers, and hosts have impliedly accepted
the power of MTRCB to regulate the broadcast industry.

Neither can petitioners virtual inability to speak in his program during the period
of suspension be plausibly treated as prior restraint on future speech. For viewed
in its proper perspective, the suspension is in the nature of an intermediate penalty
for uttering an unprotected form of speech. It is definitely a lesser punishment
than the permissible cancellation of exhibition or broadcast permit or license. In
fine, the suspension meted was simply part of the duties of the MTRCB in the
enforcement and administration of the law which it is tasked to implement.
Viewed in its proper context, the suspension sought to penalize past speech made
on prime-time G rated TV program; it does not bar future speech of petitioner
in other television programs; it is a permissible subsequent administrative
sanction; it should not be confused with a prior restraint on speech. While not on
all fours, the Court, in MTRCB,153[66] sustained the power of the MTRCB to
penalize a broadcast company for exhibiting/airing a pre-taped TV episode
without Board authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the
limits of its authority were it to regulate and even restrain the prime-time

television broadcast of indecent or obscene speech in a G rated program is not


acceptable. As made clear in Eastern Broadcasting Corporation, the freedom of
television and radio broadcasting is somewhat lesser in scope than the freedom
accorded to newspaper and print media. The MTRCB, as a regulatory agency,
must have the wherewithal to enforce its mandate, which would not be effective if
its punitive actions would be limited to mere fines. Television broadcasts should
be subject to some form of regulation, considering the ease with which they can
be accessed, and violations of the regulations must be met with appropriate and
proportional disciplinary action. The suspension of a violating television program
would be a sufficient punishment and serve as a deterrent for those responsible.
The prevention of the broadcast of petitioners television program is justified, and
does not constitute prohibited prior restraint. It behooves the Court to respond to
the needs of the changing times, and craft jurisprudence to reflect these times.

Finally, petitioner argues that there has been undue delegation of legislative
power, as PD 1986 does not provide for the range of imposable penalties that may
be applied with respect to violations of the provisions of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of


legislative power in the following wise:

It is a fundamental principle flowing from the doctrine of separation of


powers that Congress may not delegate its legislative power to the two other
branches of the government, subject to the exception that local governments may
over local affairs participate in its exercise. What cannot be delegated is the
authority under the Constitution to make laws and to alter and repeal them; the
test is the completeness of the statute in all its term and provisions when it leaves
the hands of the legislature. To determine whether or not there is an undue
delegation of legislative power, the inquiry must be directed to the scope and
definiteness of the measure enacted. The legislature does not abdicate its
functions when it describes what job must be done, who is to do it, and what is the
scope of his authority. For a complex economy, that may indeed be the only way
in which the legislative process can go forward. A distinction has rightfully been
made between delegation of power to make laws which necessarily involves a
discretion as to what it shall be, which constitutionally may not be done, and
delegation of authority or discretion as to its execution to be exercised under and

in pursuance of the law, to which no valid objection can be made. The


Constitution is thus not to be regarded as denying the legislature the necessary
resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which


implies at the very least that the legislature itself determines matters of principle
and lays down fundamental policy. Otherwise, the charge of complete abdication
may be hard to repel. A standard thus defines legislative policy, marks its limits,
maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the
executive or administrative office designated may in pursuance of the above
guidelines promulgate supplemental rules and regulations.154[67]

Based on the foregoing pronouncements and analyzing the law in


question, petitioners protestation about undue delegation of legislative power
for the sole reason that PD 1986 does not provide for a range of penalties for
violation of the law is untenable. His thesis is that MTRCB, in promulgating
the IRR of PD 1986, prescribing a schedule of penalties for violation of the
provisions of the decree, went beyond the terms of the law.

Petitioners posture is flawed by the erroneous assumptions holding it together,


the first assumption being that PD 1986 does not prescribe the imposition of, or
authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier
indicated, however, the MTRCB, by express and direct conferment of power and
functions, is charged with supervising and regulating, granting, denying, or
canceling permits for the exhibition and/or television broadcast of all motion
pictures, television programs, and publicity materials to the end that no such
objectionable pictures, programs, and materials shall be exhibited and/or
broadcast by television. Complementing this provision is Sec. 3(k) of the decree
authorizing the MTRCB to exercise such powers and functions as may be
necessary or incidental to the attainment of the purpose and objectives of [the
law]. As earlier explained, the investiture of supervisory, regulatory, and
disciplinary power would surely be a meaningless grant if it did not carry with it
the power to penalize the supervised or the regulated as may be proportionate to
the offense committed, charged, and proved. As the Court said in Chavez v.
National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every


particular power necessary for the exercise of the one or the performance of the
other is also conferred. x x x [W]hen the statute does not specify the particular
method to be followed or used by a government agency in the exercise of the
power vested in it by law, said agency has the authority to adopt any reasonable
method to carry out its function.155[68]

Given the foregoing perspective, it stands to reason that the power of the MTRCB
to regulate and supervise the exhibition of TV programs carries with it or
necessarily implies the authority to take effective punitive action for violation of
the law sought to be enforced. And would it not be logical too to say that the
power to deny or cancel a permit for the exhibition of a TV program or broadcast
necessarily includes the lesser power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a)
which, for reference, provides that agency with the power [to] promulgate such
rules and regulations as are necessary or proper for the implementation of this
Act, and the accomplishment of its purposes and objectives x x x. And Chapter
XIII, Sec. 1 of the IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.


Without prejudice to the immediate filing of the appropriate criminal action and
the immediate seizure of the pertinent articles pursuant to Section 13, any
violation of PD 1986 and its Implementing Rules and Regulations governing
motion pictures, television programs, and related promotional materials shall
be penalized with suspension or cancellation of permits and/or licenses issued
by the Board and/or with the imposition of fines and other administrative
penalty/penalties. The Board recognizes the existing Table of Administrative
Penalties attached without prejudice to the power of the Board to amend it when
the need arises. In the meantime the existing revised Table of Administrative
Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies,
the IRR does not expand the mandate of the MTRCB under the law or partake of
the nature of an unauthorized administrative legislation. The MTRCB cannot
shirk its responsibility to regulate the public airwaves and employ such means as
it can as a guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB,
along with the standards to be applied to determine whether there have been
statutory breaches. The MTRCB may evaluate motion pictures, television
programs, and publicity materials applying contemporary Filipino cultural values
as standard, and, from there, determine whether these audio and video materials
are objectionable for being immoral, indecent, contrary to law and/or good
customs, [etc.] x x x and apply the sanctions it deems proper. The lawmaking
body cannot possibly provide for all the details in the enforcement of a particular
statute.156[69] The grant of the rule-making power to administrative agencies is a
relaxation of the principle of separation of powers and is an exception to the nondelegation of legislative powers.157[70] Administrative regulations or subordinate
legislation calculated to promote the public interest are necessary because of the
growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the
law.158[71] Allowing the MTRCB some reasonable elbow-room in its operations
and, in the exercise of its statutory disciplinary functions, according it ample
latitude in fixing, by way of an appropriate issuance, administrative penalties with
due regard for the severity of the offense and attending mitigating or aggravating
circumstances, as the case may be, would be consistent with its mandate to
effectively and efficiently regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose
sanctions for violations of PD 1986, its decision to suspend petitioner must be
modified, for nowhere in that issuance, particularly the power-defining Sec. 3
nor in the MTRCB Schedule of Administrative Penalties effective January 1,
1999 is the Board empowered to suspend the program host or even to prevent
certain people from appearing in television programs. The MTRCB, to be
sure, may prohibit the broadcast of such television programs or cancel permits for
exhibition, but it may not suspend television personalities, for such would be
beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation
beyond what the law provides. Only persons, offenses, and penalties clearly
falling clearly within the letter and spirit of PD 1986 will be considered to be
within the decrees penal or disciplinary operation. And when it exists, the
reasonable doubt must be resolved in favor of the person charged with violating
the statute and for whom the penalty is sought. Thus, the MTRCBs decision in
Administrative Case No. 01-04 dated September 27, 2004 and the subsequent
order issued pursuant to said decision must be modified. The suspension should
cover only the television program on which petitioner appeared and uttered
the offensive and obscene language, which sanction is what the law and the
facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech


paradigm in which absolute permissiveness is the norm. Petitioners flawed belief
that he may simply utter gutter profanity on television without adverse
consequences, under the guise of free speech, does not lend itself to acceptance in
this jurisdiction. We repeat: freedoms of speech and expression are not absolute
freedoms. To say any act that restrains speech should be greeted with furrowed
brows is not to say that any act that restrains or regulates speech or expression is
per se invalid. This only recognizes the importance of freedoms of speech and
expression, and indicates the necessity to carefully scrutinize acts that may
restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04


dated September 27, 2004 is hereby AFFIRMED with the MODIFICATION of
limiting the suspension to the program Ang Dating Daan. As thus modified, the
fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby


rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION on the
television program, Ang Dating Daan, subject of the instant petition.

DISSENTING OPINION, Justice Antonio Carpio.

I dissent because the three-month suspension of petitioners TV program Ang


Dating Daan constitutes an unconstitutional prior restraint on freedom of
expression. The suspension prevents petitioner from even reciting the Lords
Prayer, or even saying hello to viewers, in his TV program. The suspension
bars the public airing of petitioners TV program regardless of whatever subject
matter petitioner, or anyone else, wishes to discuss in petitioners TV program.

This is like suspending the publication of the Philippine Daily Inquirer for three
months if its editorial describes a private person as masahol pa sa putang
babae. This is also similar to suspending for three months the column of a
newspaper columnist for using the expletive putang ina mo in his column. Such
suspension is the censorship that the Constitution outlaws when it states that [n]o
law shall be passed abridging the freedom of speech, of expression, or of the press
x x x.159[1]

The remedy of any aggrieved person is to file a libel or tort case after the
utterance or publication of such cusswords. Our libels laws punish with fine,
imprisonment or damages libelous language already uttered or published.160[2]
Our tort laws also allow recovery of damages for tortious speech already uttered
or published.161[3] However, both our libel and tort laws never impose a gag order
on future expression because that will constitute prior restraint or censorship.
Thus, our libel and tort laws do not allow the filing of a suit to enjoin or punish an
expression that has yet to be uttered or written.

Indeed, there can never be a prior restraint on future expression, whether for fear
of possible libelous utterance or publication, or as a punishment for past libelous
utterance or publication. Otherwise, many of the radio and TV political programs
will have to be banned for the frequent use of cusswords and other libelous
language. Even politicians will have to be barred from addressing political rallies,
or the rallies themselves will have to be banned, because politicians often use
cusswords and other profanities during political rallies.

In the present case, the three-month preventive suspension of petitioners TV


program bars petitioner from talking about the weather, or from talking about the
birds and the bees, or even from talking about nothingness, in his TV program.
The public airing of the entire TV program, regardless of its content, is totally
suppressed for three months. The Government has no power under the
Constitution to so brazenly suppress freedom of expression. This Court should
never give its imprimatur to such a blatant violation of a fundamental
constitutional right, which has been described as the one basic right that makes all
other civil, human and political rights possible.

Prior Restraint on Expression

The well-settled rule is there can be no prior restraint on expression. This rule
emanates from the constitutional command that [n]o law shall be passed
abridging the freedom of speech, of expression, or of the press x x x. The history
of freedom of expression has been a constant struggle against the censors prior
restraint on expression. The leading American case of Near v. Minnesota162[4]
teaches us that the primordial purpose of the Free Expression Clause is to
prevent prior restraint on expression.

This well-settled rule, however, is subject to exceptions narrowly carved out by


courts over time because of necessity. In this jurisdiction, we recognize only four
exceptions, namely: pornography,163[5] false or misleading
advertisement,164[6] advocacy of imminent lawless action,165[7] and danger to
national security.166[8] Only in these instances may expression be subject to prior
restraint. All other expression is not subject to prior restraint.

Although pornography, false or misleading advertisement, advocacy of imminent


lawless action, and expression endangering national security may be subject to
prior restraint, such prior restraint must hurdle a high barrier. First, such prior
restraint is strongly presumed as unconstitutional. Second, the government
bears a heavy burden of justifying such prior restraint.167[9]

The test to determine the constitutionality of prior restraint on pornography,


advocacy of imminent lawless action, and expression endangering national
security is the clear and present danger test. The expression subject to prior
restraint must present a clear and present danger of bringing about a substantive
evil the State has a right and duty to prevent, and such danger must be grave and
imminent.168[10]

The power of Congress to impose prior restraint on false or misleading


advertisements emanates from the constitutional provision that the advertising
industry is impressed with public interest, and shall be regulated by law for the
protection of consumers and the promotion of the general welfare.169[11]

Prior restraint on expression may be either content-based or content-neutral.


Content-based prior restraint is aimed at suppressing the message or idea
contained in the expression. Courts subject content-based restraint to strict
scrutiny. Content-neutral restraint on expression is restraint that regulates the
time, place or manner of expression in public places without any restraint on the
content of the expression. Courts subject content-neutral restraint to intermediate
scrutiny.

Subsequent Punishment of Expression

The rule is also well-settled that expression cannot be subject to subsequent


punishment. This rule also emanates from the constitutional command that [n]o
law shall be passed abridging the freedom of speech, of expression, or of the press
x x x. However, courts again have carved out narrow exceptions to this rule out
of necessity.

The exceptions start with the four types of expression that may be subject to prior
restraint. If a certain expression is subject to prior restraint, its utterance or
publication in violation of the lawful restraint naturally subjects the person
responsible to subsequent punishment. Thus, acts of pornography,170[12] false or
misleading advertisement,171[13] advocacy of imminent lawless action,172[14] and
endangering national security,173[15] are all punishable under the law.

Two other exceptions are defamation,174[16] which includes libel and slander, and
tortious speech.175[17] Defamatory and tortious speech, per se, are not subject to
prior restraint because by definition they do not constitute a clear and present
danger to the State that is grave and imminent. Once defamatory or tortuous
speech rises to the level of advocacy of imminent lawless action, then it may be
subject to prior restraint because it is seditious176[18] but not because it is
defamatory or tortious. Defamation and tortious conduct, however, may be subject
to subsequent punishment, civilly or criminally.
Fighting words are not subject to subsequent punishment unless they are
defamatory or tortious. Fighting words refer to profane or vulgar words that are
likely to provoke a violent response from an audience. Profane or vulgar words
like Fuck the draft, when not directed at any particular person, ethnic or
religious group, are not subject to subsequent punishment.177[19] As aptly stated,
one mans vulgarity may be another mans lyric.178[20]

If profane or vulgar language like Fuck the draft is not subject to


subsequent punishment, then with more reason it cannot be subject to prior
restraint. Without a law punishing the actual utterance or publication of an
expression, an expression cannot be subject to prior restraint because such
expression is not unlawful or illegal.

Prior restraint is more deleterious to freedom of expression than subsequent


punishment. Although subsequent punishment also deters expression, still the
ideas are disseminated to the public. Prior restraint prevents even the
dissemination of ideas to the public. Thus, the three-month suspension of
petitioners TV program, being a prior restraint on expression, has far graver
ramifications than any possible subsequent punishment of petitioner.

Three-Month Suspension is a Prohibited Prior Restraint

The three-month suspension of petitioners TV program is indisputably a prior


restraint on expression. During the three-month suspension, petitioner cannot utter
a single word in his TV program because the program is totally suppressed. A
prior restraint may be justified only if the expression falls under any of the four
types of expression that may be subject to prior restraint, namely, pornography,
false or misleading advertisement, advocacy of imminent lawless action, and
danger to national security.

Obviously, what petitioner uttered does not fall under any of the four types of
expression that may be subject to prior restraint. What respondents assail is the
following ranting of petitioner:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang


babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana
ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol
pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito

No matter how offensive, profane or vulgar petitioners words may be, they do
not constitute pornography, false or misleading advertisement, advocacy of
imminent lawless action, or danger to national security. Thus, petitioners

offensive, profane or vulgar language cannot be subject to prior restraint but may
be subject to subsequent punishment if defamatory or tortious.

Any prior restraint is strongly presumed to be unconstitutional and the


government bears a heavy burden of justifying such prior restraint.179[21] Such
prior restraint must pass the clear and present danger test. The majority opinion,
which imposes a prior restraint on expression, is totally bereft of any
discussion that petitioners ranting poses a clear and present danger to the
State that is grave and imminent. The respondents have not presented any
credible justification to overcome the strong presumption of unconstitutionality
accorded to the three-month suspension order.

The three-month suspension cannot be passed off merely as a preventive


suspension that does not partake of a penalty. The actual and real effect of the
three-month suspension is a prior restraint on expression in violation of a
fundamental constitutional right. Even Congress cannot validly pass a law
imposing a three-month preventive suspension on freedom of expression for
offensive or vulgar language uttered in the past. Congress may punish such
offensive or vulgar language, after their utterance, with damages, fine or
imprisonment but Congress has no power to suspend or suppress the peoples
right to speak freely because of such past utterances.

In short, Congress may pass a law punishing defamation or tortious speech but the
punishment cannot be the suspension or suppression of the constitutional right to
freedom of expression. Otherwise, such law would be abridging the freedom
of speech, of expression, or of the press. If Congress cannot pass such a law,
neither can respondent MTRCB promulgate a rule or a decision suspending for
three months petitioners constitutional right to freedom of expression. And of
course, neither can this Court give its stamp of imprimatur to such an
unconstitutional MTRCB rule or decision.

Read:

1. Gonzales vs. Kalaw Katigbak, 137 SCRA 717

2. New York Times vs. U.S., 403 U.S. 713 (Any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its validity)
3. Near vs. Minnesota, 283 U.S. 697
4. Times Film vs. City of Chicago, 365 U.S. 43
5. Freedman vs. Maryland, 380 U.S. 51
8. Clear and present danger and dangerous tendency rule (whether the words used in
such circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that the State has the right to
prevent)

7-a. Dangerous tendency rule (If the words uttered create a dangerous
tendency which the State has the right to prevent, then such words are
punishable)
Read:

1. Cabansag vs. Fernandez, 102 Phil. 152


2. Read again the Reyes and Ruiz cases, supra
3. Read again Zaldivar vs. Sandiganbayan, GR No. 7960-707& Zaldivar vs.
Gonzales, GR No. 80578, February 1, 1989

8. The balancing-of-interest test (When a particular conduct is regulated in


the interest of the public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the courts is to
determine which of the 2 conflicting interests demand greater protection
under the circumstances presented.)

Read:

AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET


AL., 160 SCRA 861

Read also:

1. Lagunzad vs. Gonzales, 92 SCRA 476


2. Gitlow vs. New York, 268 U.S. 652, including the criticism on this test by
Justice Holmes
3. See also Zaldivar case above

CHAPTER VI - THE NON-ESTABLISHMENT


OF RELIGION CLAUSE

Section 5. No law shall be made respecting the establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution of the


Motion for Reconsideration), 408 SCRA 1

Puno, J.

Respondent is the Court interpreter of RTC Branch 253, Las Pinas City.
Complainant requested for an investigation of respondent for living with a man
not her husband while she was still legally married and having borne a child
within this live-in arrangement. Estrada believes that Escritor is committing a

grossly immoral act which tarnishes the image of the judiciary, thus she should
not be allowed to remain employed therein as it might appear that the court
condones her act.

Respondent admitted she started living with Luciano Quilapio, Jr. more than 20
years ago when her husband was still alive but living with another woman. She
likewise admitted having a son with Quilapio but denies any liability for alleged
grossly immoral conduct because:

She is a member of the Jehovahs Witnesses and the Watch Tower Society;

That the conjugal arrangement was in conformity with their religious beliefs;

That the conjugal arrangement with Quilapio has the approval of her congregation.

Escritor likewise claimed that she had executed a DECLARATION OF


PLEDGING FAITHFULNESS in accordance with her religion which allows
members of the Jehovahs witnesses who have been abandoned by their spouses
to enter into marital relations. The Declaration thus makes the resulting union
moral and binding within the congregation all over the world except in countries
where divorce is allowed.

HELD:

Escritors conjugal arrangement cannot be penalized as she has made out a case
for exemption from the law based on her fundamental right to religion. The Court
recognizes that state interests must be upheld in order that freedoms---including
religious freedom---may be enjoyed. IN THE AREA OF RELIGIOUS
EXERCISE AS A PREFERRED FREEDOM, HOWEVER, MAN STANDS
ACCOUNTABLE TO AN AUTHORITY HIGHER THAN THE STATE, and so
the state interest sought to be upheld must be so compelling that its violation will
erode the very fabric of the state that will also protect the freedom. In the absence
of a showing that the state interest exists, man must be allowed to subscribe to the
Infinite.

Escritor was therefore held not administratively liable for grossly immoral
conduct.

FREEDOM OF RELIGION
-any specific system of belief, worship or conduct, often involving a code
of ethics and philosophy.
-A profession of faith to an active power that binds and elevates man to his
Creator.

The existence of a Divine being is not necessarily inherent in religion; the


Buddhists espouses a way of life without reference to an omnipotent God.

Strong fences make good neighbors. The idea is to delineate the boundaries
between two institutions and prevent encroachments by one against the other.

The doctrine cuts both ways. It is not only the State that is prohibited from
interfering in purely ecclesiastical affairs; the Church is likewise barred from
meddling in purely secular matters.

NON-STABLISHMENT CLAUSE:

It simply means that the State cannot set up a church; nor pass laws which aids
one religion; aid all religion, or prefer one religion over another nor force nor
influence a person to go to or remain away from church against his will; or force
him to profess a belief or disbelief; that the State cannot openly or secretly
participate in the affairs of any religious organization or group and vice versa
(EVERSON VS. BOARD OF EDUCATION, 330 US 1)

This clause seeks to protect:

Voluntarism---must come into existence through the voluntary support of its


members;
Insulation from political processgrowth through voluntary support of its
members will not take place if there is intervention from the State.

There will be no violation of the non-establishment clause if:

the statute has a secular legislative purpose;


its principal or primary effect is one that neither advances nor inhibits religion;
and
it does not foster an excessive government entanglement with religion. (LEMON
VS. KURTZMAN, 403 US 602)

The government is neutral and while protecting all, it prefers none and disparages
none. All here applies both to the believer and the non-believer. FREEDOM OF
RELIGION INCLUDES FREEDOM FROM RELIGION; THE RIGHT TO
WORHIP INCLUDES THE RIGHT NOT TO WORSHIP.

SCHOOL PRAYER CASE (ENGEL VS. VITALE, 370 US 421)

It is unconstitutional for a school to require the students to recite a prayer


composed by the Board of Regents at the starts of the days class. It is no part of
the business of government to compose official prayers for any group of the
American People.

SCHOOL DISTRICT OF ABINGTON VS. SCHEMPP, 374 US 203

It is unconstitutional for a law to require that at least 10 verses from the Holy
Bible be read daily without comment because the same constitute a religious
exercise which violates the non-establishment clause.

BOARD OF EDUCATION VS. ALLEN, 392 US


236
A law requiring the Board of Education to lend textbooks free of charge to all
students from grades 7-12 of parochial school. This is constitutional since it is not
the parochial school which gets the benefits but the parents.

EVERSON VS. BOARD OF EDUCATION, 330 US


1
The law authorizing reimbursement of transportation expenses of school children
going to and from parochial schools is not violative of the non-establishment
clause because it will be the parents who get benefits, not the parochial school.

RIGHT TO RELIGIOUS PROFESSION AND WORSHIP HAS TWO


ASPECTS:

1. Freedom to believe; and


2. Freedom to act.

IN the first, such freedom is absolute. He may indulge in his own theories
about life and death; worship any god he chooses, or none at all. He may not be
punished even if he cannot prove what he believes.

In the second, if the individual externalizes what he believes, his freedom


to do so becomes subject to the authority of the State. This is so because religious
freedom can be exercised only with due regard to the rights of others. Example:
Go forth and multiply---cannot marry several times just to comply.

PEOPLE VS. LAGMAN & ZOSA, 38 O.G. 1676

Avoiding military duties based on religious grounds is not allowed in the


Philippines because of Section 4, Article IIThe state is the protector of the
people and it is the prime duty of the people to defend the State and in the
fulfillment of this duty, the State may call all citizens to render military or civil
service.

IN RE SUMMERS, 325 US 561


The act of the Illinois Supreme Court denying admission to the bar because of his
refusal to take in good faith an oath to support the Constitution of the State of
Illinois which requires mandatory service in the military in times of war was
reversed by the US Supreme Court stating that this constitutes a violation of the
1st Amendment which guarantees religious freedom.

1. Religious freedom in relation to impairment of contracts and the right to join


associations,36 SCRA 445

2. Read:

1. Aglipay vs. Ruiz, 64 Phil. 201


2. Garces vs. Estenzo, 104 SCRA 510

3. INK vs. Gironella, 106 SCRA 1


4. American Bible Society vs. City of Manila, 101 Phil. 398
5. Gerona vs. Sec. of Education, 106 Phil. 11
6. Pamil vs. Teleron, November 20, 1978
7. Victoriano vs. Elizalde Rope, 59 SCRA 54
7. German vs. Barangan, 135 SCRA 514

ANG LADLAD LGBT PARTY VS. COMELEC, G.R. No. 190582, April 7, 2010
DEL CASTILLO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT
Party (Ang Ladlad) against the Resolutions of the Commission on Elections
(COMELEC) dated November 11, 2009 (the First Assailed Resolution) and December
16, 2009 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the
Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang
Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known
as the Party-List System Act.
Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in
2006. The application for accreditation was denied on the ground that the organization
had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged because of
their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections. Ang Ladlad laid out its national membership base consisting
of individual members and organizational supporters, and outlined its platform of
governance.
On November 11, 2009, after admitting the petitioners evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner


defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT)
Community, thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a persons capacity for profound emotional, affectional and sexual


attraction to, and intimate and sexual relations with, individuals of a different gender, of
the same gender, or more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs.

The ANG LADLAD apparently advocates sexual immorality as indicated in the


Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who are
already of age. It is further indicated in par. 24 of the Petition which waves for the
record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated
as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship,


or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal
Code are deemed part of the requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines
nuisance as Any act, omission, establishment, business, condition of property, or
anything else which x x x (3) shocks, defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The contracting parties
may establish such stipulations, clauses, terms and conditions as they may deem

convenient, provided they are not contrary to law, morals, good customs, public order or
public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or
purpose is contrary to law, morals, good customs, public order or public policy are
inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal
Code, as amended, penalizes Immoral doctrines, obscene publications and exhibitions
and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent
shows. The penalty of prision mayor or a fine ranging from six thousand to twelve
thousand pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to


public morals;

When Ang Ladlad sought reconsideration to the COMELEC EN BANC, three


commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio
Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners
voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the
tie and speaking for the majority in his Separate Opinion, upheld the First Assailed
Resolution, stating that:
Ladlad is applying for accreditation as a sectoral party in the party-list system.
Even assuming that it has properly proven its under-representation and marginalization, it
cannot be said that Ladlads expressed sexual orientations per se would benefit the nation
as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the
party-list system of electing congressional representatives is to enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and parties, and
who lack well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative organizations would
have found themselves into the party-list race. But that is not the intention of the framers
of the law. The party-list system is not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the party-list system is a tool for
the realization of aspirations of marginalized individuals whose interests are also the
nations only that their interests have not been brought to the attention of the nation
because of their under representation. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and transgender identities is beneficial
to the nation, its application for accreditation under the party-list system will
remain just that.

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is


elevated, there can be no denying that Ladlad constituencies are still males and females,
and they will remain either male or female protected by the same Bill of Rights that
applies to all citizens alike.
The COMELEC likewise used the Holy Bible and the Koran in denying Ladlads
application.
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul
the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory
injunction against the COMELEC, which had previously announced that it would begin
printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, the Office of the Solicitor General (OSG was ordered to file
its Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010.
Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting
that it be given until January 16, 2010 to Comment. Somewhat surprisingly, the OSG
later filed a Comment in support of petitioners application. Thus, in order to give
COMELEC the opportunity to fully ventilate its position, we required it to file its own
comment. The COMELEC, through its Law Department, filed its Comment on February
2, 2010.
In the meantime, due to the urgency of the petition, a temporary restraining order
was issued on January 12, 2010, effective immediately and continuing until further orders
from this Court, directing the COMELEC to cease and desist from implementing the
Assailed Resolutions.
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a
Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-

Intervention. The CHR opined that the denial of Ang Ladlads petition on moral grounds
violated the standards and principles of the Constitution, the Universal Declaration of
Human Rights (UDHR), and the International Covenant on Civil and Political Rights
(ICCPR). On January 19, 2010, we granted the CHRs motion to intervene.
HELD:
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground
that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for
the proposition that only those sectors specifically enumerated in the law or related to
said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals)
may be registered under the party-list system. As we explicitly ruled in Ang Bagong
Bayani-OFW Labor Party v. Commission on Elections, the enumeration of
marginalized and under-represented sectors is not exclusive. The crucial element is
not whether a sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.

A cursory perusal of Ang Ladlads initial petition shows that it never claimed to
exist in each province of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at least 670,000 persons; that it
had 16,100 affiliates and members around the country, and 4,044 members in its
electronic discussion group. Ang Ladlad also represented itself to be a national LGBT
umbrella organization with affiliates around the Philippines composed of the following
LGBT networks:
Abra Gay Association
Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)

Cant Live in the Closet, Inc. (CLIC) Metro Manila


Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal

Society of Transexual Women of the Philippines (STRAP) Metro Manila


Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from
COMELECs moral objection and the belated allegation of non-existence, nowhere in the
records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as
a party-list organization under any of the requisites under RA 7941 or the guidelines in
Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality,
or lack thereof.
Our Constitution provides in Article III, Section 5 that [n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. At
bottom, what our non-establishment clause calls for is government neutrality in
religious matters. Clearly, governmental reliance on religious justification is
inconsistent with this policy of neutrality. We thus find that it was grave violation of
the non-establishment clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some justification
for its rulings beyond mere conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in ways that have primarily secular
effects. As we held in Estrada v. Escritor:
x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in
public debate may influence the civil public order but public moral disputes may be
resolved only on grounds articulable in secular terms." Otherwise, if government relies
upon religious beliefs in formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,

government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.
We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not
difficult to imagine the reasons behind this censure religious beliefs, convictions about
the preservation of marriage, family, and procreation, even dislike or distrust of
homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the
Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore,
these generally accepted public morals have not been convincingly transplanted into
the realm of law.
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that there should have been a finding
by the COMELEC that the groups members have committed or are committing immoral
acts. The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a
different gender, or more than one gender, but mere attraction does not translate to
immoral acts. There is a great divide between thought and action. Reduction ad
absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full
of disqualification cases against both the straights and the gays. Certainly this is not
the intendment of the law.
Respondent has failed to explain what societal ills are sought to be prevented, or
why special protection is required for the youth. Neither has the COMELEC
condescended to justify its position that petitioners admission into the party-list system
would be so harmful as to irreparably damage the moral fabric of society. We, of course,
do not suggest that the state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we
cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate
morality on one end of an argument or another, without bothering to go through the rigors
of legal reasoning and explanation. In this, the notion of morality is robbed of all value.
Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.
We also find the COMELECs reference to purported violations of our penal and
civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a
nuisance as any act, omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality, the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or
abatement without judicial proceedings. A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is
not proof, and a mere blanket invocation of public morals cannot replace the institution of
civil or criminal proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient


governmental interest to justify exclusion of homosexuals from participation in the partylist system. The denial of Ang Ladlads registration on purely moral grounds amounts
more to a statement of dislike and disapproval of homosexuals, rather than a tool to
further any substantial public interest. Respondents blanket justifications give rise to the
inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not
because of any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides nor shall any person be denied equal protection of the laws, courts have never
interpreted the provision as an absolute prohibition on classification. Equality, said
Aristotle, consists in the same treatment of similar persons. The equal protection
clause guarantees that no person or class of persons shall be deprived of the same
protection of laws which is enjoyed by other persons or other classes in the same place
and in like circumstances.
Recent jurisprudence has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the classification as long as it bears a
rational relationship to some legitimate government end. In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas, we declared that [i]n our jurisdiction, the
standard of analysis of equal protection challenges x x x have followed the rational
basis test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach
of the Constitution.
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason
to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has
expressed no such belief. No law exists to criminalize homosexual behavior or
expressions or parties about homosexual behavior. Indeed, even if we were to assume
that public opinion is as the COMELEC describes it, the asserted state interest here that
is, moral disapproval of an unpopular minority is not a legitimate state interest that is
sufficient to satisfy rational basis review under the equal protection clause. The
COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot
contribute to the formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a disfavored group.
It bears stressing that our finding that COMELECs act of differentiating LGBTs
from heterosexuals insofar as the party-list system is concerned does not imply that any
other law distinguishing between heterosexuals and homosexuals under different
circumstances would similarly fail. We disagree with the OSGs position that
homosexuals are a class in themselves for the purposes of the equal protection clause.
We are not prepared to single out homosexuals as a separate class meriting special or

differentiated treatment. We have not received sufficient evidence to this effect, and it is
simply unnecessary to make such a ruling today. Petitioner itself has merely demanded
that it be recognized under the same basis as all other groups similarly situated, and that
the COMELEC made an unwarranted and impermissible classification not justified by
the circumstances of the case.
Freedom of Expression and Association
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are favorably received
but also to those that offend, shock, or disturb. Any restriction imposed in this sphere
must be proportionate to the legitimate aim pursued. Absent any compelling state interest,
it is not for the COMELEC or this Court to impose its views on the populace. Otherwise
stated, the COMELEC is certainly not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is
not illegal in this country. It follows that both expressions concerning ones
homosexuality and the activity of forming a political association that supports LGBT
individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public morality does
not justify criminalizing same-sex conduct. European and United Nations judicial
decisions have ruled in favor of gay rights claimants on both privacy and equality
grounds, citing general privacy and equal protection provisions in foreign and
international texts. To the extent that there is much to learn from other jurisdictions that
have reflected on the issues we face here, such jurisprudence is certainly illuminating.
These foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts have ruled
that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In
order to justify the prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany an unpopular viewpoint.
With respect to freedom of association for the advancement of ideas and beliefs,
in Europe, with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change in the law
or the constitutional structures of a state if it uses legal and democratic means and the
changes it proposes are consistent with democratic principles. The ECHR has emphasized
that political ideas that challenge the existing order and whose realization is advocated by
peaceful means must be afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population. A political group should not be hindered

solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned. Only if a political party incites
violence or puts forward policies that are incompatible with democracy does it fall
outside the protection of the freedom of association guarantee.
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and express
that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with
equal fervor that relationships between individuals of the same sex are morally equivalent
to heterosexual relationships. They, too, are entitled to hold and express that view.
However, as far as this Court is concerned, our democracy precludes using the religious
or moral views of one part of the community to exclude from consideration the values of
other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay
rights litigants. It well may be that this Decision will only serve to highlight the
discrepancy between the rigid constitutional analysis of this Court and the more complex
moral sentiments of Filipinos. We do not suggest that public opinion, even at its most
liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither
attempt nor expect to affect individual perceptions of homosexuality through this
Decision.
WHEREFORE, the Petition is hereby GRANTED.

ROEL EBRALINAG, ET AL VS. THE DIVISION SUPERINTENDENT OF


SCHOOLS OF CEBU, March 1, 1993

Grino--Aquino, J.

Facts:
1. The petitioners are high school and grade schools students enrolled in the
different public schools of the Province of Cebu and who belong to the religious
group known as the Jehovah's Witnesses;

2. That they rrefused to take part in the flag ceremony which includes playing by
a band or singing the Philippine National Anthem, saluting the Philippine Flag
and reciting the patriotic pledge because they considered the flag as an image and
they should not worship it except GOD;

3. That because of their refusal to perform the foregoing acts as required by RA


1265 of July 11, 1955 and by Department Order No. 8 dated July 21, 1955 of the
DECS making the flag ceremony compulsory in all educational institutions, they
were expelled by the respondent school authorities.

Hence this petition.

Issue:
------

May the petitioners be expelled for refusing to salute the flag, recite the patriotic
pledge or sing the national anthem in order to follow their religious beliefs?

Held:
The same issue was raised in Gerona vs. Secretary of Education, 106 Phil. 2
(1959) and Balbuna vs. Secretary of Education, 110 Phil. 150 (1960) where the
SC held that:

The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of freedom
and liberty which it and the Constitution guarantee and protect. Under a system of
complete separation of church and state in the government, the flag is utterly
devoid of any religious significance.

The law, RA 1265 was likewise incorporated in Executive Order No. 297,
September 21, 1988.

Our task is extremely difficult for the 30-year old decision of this Court in
GERONA upholding the salute law and approving the expulsion of students who
refuse to obey it, is not lightly to be trifled with.

The idea that one may be compelled to salute the flag, sing the national anthem,
and recite the patriotic pledge, during flag ceremony on pain of being dismissed
from one's job or be expelled in school, IS ALIEN TO THE CONSCIENCE OF
THE PRESENT GENERATION OF FILIPINOS WHO CUT THEIR TEETH ON
THE BILL OF RIGHTS WHICH GUARANTEES THEIR RIGHTS TO FREE
SPEECH AND THE FREE EXERCISE OF RELIGIOUS PROFESSION AND
WORSHIP (Section 5, Art. III, 1987 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority


and the amplest protection among human rights, for it involves the relationship of
man and his Creator (Chief Justice Fernando's separate opinion in German vs.
Barangan, 135 SCRA 530).

The right to religious profession has a two-fold aspect, vis., freedom to believe
and freedom to act on one's belief. The first is absolute as long as the belief is
confined within the realm of the thought. The second is subject to regulation
where the belief is translated into external acts that affect the public welfare.

The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according the Former Chief justice Teehankee in his dissenting opinion
in German vs. Baranagan) is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to public safety, public
morals, public health or any other legitimate public interest, that the State has the
right and duty to presvent. Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified since they are not doing anything
that could warrant their expulsion since during flag ceremonies, they just quietly

stand at attention to show their respect for the rights of others who choose to
participate in the solemn proceedings.

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, we upheld the
exemption of the members of the Iglesia ni Kristo from the coverage of the
closed-shop agreement between the labor union and the company because it
would violate the teaching of their church not to join any labor group.

We hold that a similar exemption may be accorded to the Jehovah's Witnesses


with regard to the observance of the flag ceremony out of respect to their religious
beliefs, however "bizarre" those beliefs may seem to others

CHAPTER VII - THE CONSTITUTIONAL


RIGHT TO TRAVEL

Section 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public health,
as may be provided by law.

NOTE: THE APPLICABLE PROVISION OF THE HUMAN SECURITY ACT


ON THE RIGHT TO TRAVEL

Section 26 provides that persons who have been charged with terrorism or
conspiracy to commit terrorism---even if they have been granted bail because
evidence of guilt is not strongcan be:

Detained under house arrest;

Restricted from traveling; and/or

Prohibited from using any cellular phones, computers, or other means of communications
with people outside their residence.

Upon application of the prosecutor, the suspects right to travel shall be limited to
the municipality or city where he resides or where the case is pending, in the
interest of national security and public safety. Travel outside of said municipality
or city, without the authorization of the court, shall be deemed a violation of the
terms and conditions of the bail which shall then be forfeited as provided in the
Rules of Court.

These restrictions shall be terminated upon acquittal of the accused; or the


dismissal of the case filed against him; or earlier upon the discretion of the court
or upon motion of the prosecutor.

1. The constitutional as well as human right to travel, 129 SCRA

2. Read:

FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS, ET AL.,


G.R. NO. 88211, September 15, 1989 and the Resolution of the Motion for
Reconsideration dated October 27, 1989

right to travel; liberty of abode


and "right to return"
En banc

Cortes, J.

This is a petition for mandamus and prohibition asking the Supreme Court to
Order the respondents to issue travel documents to the petitioners and to enjoin
the implementation of the President's decision to bar their return to the
Philippines.

The case for the petitioners is founded on the assertion that their right to return to
the Philippines is guaranteed by the following provisions of the Constitution:

Section 1. No person shall be deprived of life liberty or property without due


process of law, nor shall any person be denied equal protection of the laws.

Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except in the interest of national security,
public safety or public health, as may be provided by law.

The petitioners contend that the President has no power to impair the liberty of
abode of the Marcoses because only the Courts may do so "within the limits
prescribed by law". Nor may the President impair the right to travel because no
law has authorized her to do so.

Also, the petitioners claim that under international law, particularly the Universal
Declaration of Humjan Rights guaranteed the right of the Marcoses to return to
the Philippines. Thus:

Art. 13 (1) Everyone has the right to freedom of movement and residence within
the borders of each state.

(2) Everyone has the right to leave any country, including his own, AND TO
RETURN TO HIS COUNTRY.

Likewise, under the International Covenant on Civil and Political Rights, which
had been ratified by the Philippines, provides:

Art. 12

4) No one shall be arbitrarily deprived of the right to enter his own country.

The respondents argue that the issue in this case involves a political question
which is therefore beyond the jurisdiction of the Court. Furthermore, they argue
that the right of the state to national security prevails over individual rights, citing
Section 4, Art. II of the 1987 Philippine Constitution.

Issue:
Whether or not, in the exercise of the powers granted in the Constitution, the
President may prohibit the Marcoses from returning to the Philippines.

The sub-issues, which could help in the determination of the main issue, are:

1. Does the President have the power to bar the Marcoses to return to the
Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former Pres. Marcos and his
family from returning to the Philippines, in the interest of national security, public
safety or public health, has the President made a finding that the return of the
petitioners to the Philippines is a clear and present danger to national security,
public welfare or public health. And if she has made that finding, have the

requirements of due process been complied with in making such finding? Has
there been prior notice to the petitioners?

Held:
It must be emphasized that the individual right involved in this case is not the
right to travel from the Philippines to other countries or within the Philippines.
These are what the right to travel connote. Essentially, the right to return to one's
country, a totally distinct right under international law, independent from, though
related to the right to travel. Thus, even the Universal declaration of Human
Rights and the International Covenant on Civil and Political Rights treat the right
to freedom of movement and abode within the territory of the state, the right to
leave a country and the right to enter one's country as separate and distinct rights.

THE RIGHT TO RETURN TO ONE'S COUNTRY IS NOT AMONG THE


RIGHTS SPECIFICALLY GUARANTEED BY THE BILL OF RIGHTS,
WHICH TREATS ONLY OF THE LIBERTY OF ABODE AND THE
RIGHT TO TRAVEL, BUT IT IS OUR WELL-CONSIDERED VIEW THAT
THE RIGHT TO RETURN MAY BE CONSIDERED AS A GENERALLY
ACCEPTED PRINCIPLE OF INTERNATIONAL LAW, UNDER OUR
CONSTITUTION, IS PART OF THE LAW OF THE LAND.

To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's RESIDUAL POWER to protect the general
welfare of the people.

The court cannot close its eyes to present realities and pretend that the country is
not besieged by the insurgency, separatist movement in Mindanao, rightist
conspiracies to grab power, etc. With these before her, the President cannot be
said to have acted arbitrarily, capriciously and whimsically.

Lastly, the issue involved in the case at bar is not political in nature since under
Section 1, Art. VIII of the Constitution, judicial power now includes the duty to
"determine whether or not there has been a grave abuse of discretion amounting to

lack of jurisdiction on the part of any branch or instrumentality of the


government."

NOTE:

The main opinion was concurred in by 7 justices (CJ Fernan, Narvasa, MelencioHerrera, Gancayco, Grino-Aquino, Medialdea and Regalado) or a total of 8
justices in voting in favor of DISMISSING the petition. Seven justices filed
separate dissenting opinions (Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin
and Sarmiento).

***********************

Gutierrez, Jr., J., dissenting.


With all due respect for the majority in the Court that the main issue in this case is
not one of power but one on RIGHTS. If he comes home, the government has the
power to arrest and punish him but does it have the power to deny him his right to
come home and die among familiar surroundings? x x x The government has
more than ample powers under existing laws to deal with a person who
transgresses the peace and imperils public safety. BUT THE DENIAL OF
TRAVEL PAPERS IS NOT ONE OF THOSE POWERS BECAUSE THE BILL
OF RIGHTS SAY SO. THERE IS NO LAW PRESCRIBING EXILE IN
FOREIGN LAND AS THE PENALTY FOR HURTING THE NATION.

. The fears expressed by its representatives were based on mere conjectures of


political and economic destabilization without any single piece of concrete
evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist
"factual bases for the President's decision" to bar Marcos's return. That is not my
recollection of the impressions of the Court after the hearing.
2. Silverio vs. CA, April 8, 1991

Read also:
1. Caunca vs. Salazar, 82 Phil. 851
2. Kwong vs. PCGG, December 7,l987

Manotoc vs. CA, 142 SCRA 149

1. Petitioner Ricardo Manotoc, Jr. has 6 criminal cases for estafa pending against
him. In said cases he was admitted to bail with the FGU Insurance Corporation as
surety.

He is also involved in a case pending before the Securities and Exchange


Commission.

2. The SEC requested the Commissioner on Immigration not to clear petitioner


for departure pending disposition of the case involving him. The same was
granted by the Commissioner.

3. Petitioner subsequently filed before the trial courts a motion entitled "motion
for permission to leave the country" stating as ground therefor his desire to go to
the United States, "relative to his business transactions and opportunities".

4. The motion was denied by the lower courts and the matter was elevated to the
Court of Appeals which also denied the same. Petitioner brings the matter to the
S.C. claiming his constitutional right to travel and also contending that having
been admitted to bail as a matter of right, neither the courts which granted him
bail nor the SEC would have jurisdiction over his liberty.

HELD:

Petition denied.

a. A court has the power to prohibit a person admitted to bail from leaving the
Philippines. This is a necessary consequence of the nature and function of a bail
bond. The condition imposed upon petitioner to make himself available at all
times whenever the court requires his presence operates as a valid restriction on
his right to travel.

b. "x x x the result of the obligation assumed by appellee to hold the accused
amenable at all times to the orders and processes of the lower court, was to
prohibit the accused from leaving the jurisdiction of the Philippines, because,
otherwise, said orders and processes will be nugatory, and inasmuch as the
jurisdiction of the courts from which they issued does not extend beyond that of
the Philippines they would have no binding force outside of said
jurisdiction."(People vs. Uy Tuising, 61 Phil. 404 (l935)

c. To allow the petitioner to leave the Philippines without sufficient reason would
place him beyond the reach of the courts.

d. Petitioner cites the Court of Appeals case of People vs. Shepherd (C.A.-G.R.
No. 23505-R, Feb. 13, 1980) as authority for his claim that he could travel. The
S.C. held however that said case is not squarely on all fours with the case at bar.
Unlike the Shepherd case, petitioner has failed to satisfy the courts of the urgency
of his travel, the duration thereof, as well as the consent of his surety to the
proposed travel.

e. It may thus be inferred that the fact that a criminal case is pending against an
accused does not automatically bar him from travelling abroad. He must however
convince the courts of the urgency of his travel, the duration thereof, and
that his sureties are willing to undertake the responsibility of allowing him to
travel.

4. Villavicencio vs. Lukban, 39 Phil. 778


5. Roan vs. Gonzales, supra.
6. Salonga vs. Hermoso, 97 SCRA 121
7. Read also the Ferdinand Marcos Cases of August & October, 1989

CHAPTER VIII - THE CONSTITUTIONAL


RIGHT TO INFORMATION

Section 7. The right of the people to information on matters of public concern shall be
recognized. Access to official recordsshall be afforded the citizen subject to such
limitations as may be provided by law.

1. Read:

Right to Privacy; right to information on matters of public concern;

CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504
SCRA 704

Sandoval-Gutierrez, J.
The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced


Philippine Senate Resolution No. 455 (Senate Res. No. 455),180[4] directing an
inquiry in aid of legislation on the anomalous losses incurred by the Philippines
Overseas Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings

Corporation (PHC) due to the alleged improprieties in their operations by their


respective Board of Directors. The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and


entertainment expense of the PHC skyrocketed to P4.3 million, as compared to
the previous years mere P106 thousand;

WHEREAS, some board members established wholly owned PHC


subsidiary called Telecommunications Center, Inc. (TCI), where PHC funds are
allegedly siphoned; in 18 months, over P73 million had been allegedly advanced
to TCI without any accountability report given to PHC and PHILCOMSAT;

WHEREAS, the Philippine Star, in its 12 February 2002 issue reported


that the executive committee of Philcomsat has precipitately released P265
million and granted P125 million loan to a relative of an executive committee
member; to date there have been no payments given, subjecting the company to
an estimated interest income loss of P11.25 million in 2004;

WHEREFORE, be it resolved that the proper Senate Committee shall


conduct an inquiry in aid of legislation, on the anomalous losses incurred by
the Philippine Overseas Telecommunications Corporation (POTC),
Philippine Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in
the operations by their respective board of directors.

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of


Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of
the herein petitioners, inviting him to be one of the resource persons in the public
meeting jointly conducted by the Committee on Government Corporations and
Public Enterprises and Committee on Public Services. The purpose of the public
meeting was to deliberate on Senate Res. No. 455.181[6]

On May 9, 2006, Chairman Sabio declined the invitation because of prior


commitment.182[7] At the same time, he invoked Section 4(b) of E.O. No. 1
earlier quoted. On September 12, 2006, at around 10:45 a.m., Major General
Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA,

Mandaluyong City and brought him to the Senate premises where he was
detained. Hence, Chairman Sabio filed with the Supreme Court a petition for
habeas corpus against the Senate Committee on Government Corporations and
Public Enterprises and Committee on Public Services, their Chairmen, Senators
Richard Gordon and Joker P. Arroyo and Members. The case was docketed as
G.R. No. 174340.

I S S U E S:

Is the refusal of the petitioners to testify in Congress by virtue of EO No. 1,


Section 4 [b] violates the constitutional provision on information on matters of
public concern?

H E L D:

Yes.

Section 4(b) of E.O. No.1 which was invoked by the petitioners in support
of their refusal to testify in the Senate limits the power of legislative inquiry by
exempting all PCGG members or staff from testifying in any judicial, legislative
or administrative proceeding, thus:

No member or staff of the Commission shall be required to testify or


produce evidence in any judicial, legislative or administrative proceeding
concerning matters within its official cognizance.

Such provision of EO No. 1 is unconstitutional because it violates the


constitutional provision ensuring the peoples access to information on matters of
public

bantay republic ACT vs. comelec, may 4, 2007, 523 SCRA 1

The petitioner requested the COMELEC to publish the individual nominees


of all the party-list groups in order that they will be guided on what party-list
group shall be supported by them. The COMELEC held that under the

Party-list Act, such list of nominees is confidential and should not be


published.

Held:

The COMELEC should publish the list of nominees of all the party-list
groups. This is in accordance with the right to information on matters of
public concern which shall be accorded to every citizen.

Valmonte vs. Belmonte, GR No. 74930, February 13, 1989 in relation to the
Right to Privacy
Cortes, J.

Facts:
1. On June 4, 1986, petitioner Valmonte wrote the respondent asking the latter to
furnish him copies of former members of the Batasang Pambansa who were able
to secure a "clean loan" from the GSIS prior to the February 7, 1986 elections;

2. On June 17, 1986, respondent through counsel refused to give the petitioner a
list of said lawmakers who obtained "clean loans" from the GSIS on the ground
that there is a confidential relationship between the GSIS and its borrowers and it
would be proper for them to preserve the same;

3. On July 19, 1986, the petitioners filed this instant petition.

Issues:

1. Whether or not the case should be dismissed for failure to exhaust


administrative remedies?

2. Whether or not the petitioners are entitled to the documents sought in


accordance with their constitutional right to information?

Held:
1. It is well-settled in our jurisdiction that before a party can be allowed to resort
to the courts, he is expected to have exhausted all means of administrative redress
available under the law.

In the case at bar, the decision of the General Manager of the GSIS is
appealable/reviewable by the GSIS Board of Trustees. Petitioners did not ask the
Board of Trustees to review the decision of the respondent.

However, the rule on exhaustion of administrative remedies is not applicable


when only questions of law is involved. (Pascual vs. Provincial Board, 106 Phil.
466; Aguilar vs. Valencia, 40 SCRA 210; Malabanan vs. Ramento, 129 SCRA
359.

This is not the first time that the court is confronted with a case involving the right
to information. In Tanada vs. Tuvera, 136 SCRA 27, we upheld the citizen's right
to information as well as in Legaspi vs. CSC, 150 SCRA 530 and ordered the
government officers involved to act as prayed for by the petitioners. The pertinent
provision of the Constitution is Section 7, Art. III which provides:

The right of the people to information on matters of public concern shall be


recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions x x x shall be afforded the citizen, subject to such
limitations as may be provided for by law.

The postulate of public office is a public trust as institutionalized in the


Constitution (Sec. 1, Art. XI) to protect the people from abuse of governmental
power, would certainly be empty words if access to information of public concern
is denied except under limitations prescribed by law.

Petitioners are members of the media. As such, they have both the right to gather
and the obligation to check the accuracy of the information they disseminate x x x

The right to information is an essential premise of a meaningful right to speech


and expression. But this is not to say that the right to information is merely an
adjunct of and therefore restricted in application by the exercise of the freedom of
speech and of the press. Far from it. The right to information goes hand in hand
with the constitutional policies of "full public disclosure" and "honesty in the
public service".

Yet, like all the constitutional guarantees, the right to information is not absolute.
It is subject to limitations provided for by law and the people's right to
information is limited to "matters of public concern". Similarly, the State's policy
of full disclosure is limited to "transactions involving public interest" and subject
to "reasonable conditions prescribed by law."

The information sought to be obtained by the petitioners affect public interest


since the GSIS is the trustee of contributions from the government and its
employees. The funds of the GSIS assume a public character and that its
obligations are guaranteed by the government.

The petitioners are entitled to access to documents sought subject to reasonable


regulations that the respondent may impose relating to manner and hours of
examination, to the end that damage or loss of the records may be avoided, that
undue interference with the duties of the custodian of the records may be
prevented and that the right of other persons entitled to inspect the records may be
insured [Legaspi vs. CSC, supra; Subido vs. Ozaeta, 80 Phil. 383]

he petitioners, however, are not entitled to be furnished copies of list of alleged


members of the Batasang Pambansa who were able to secure clean loans through
the intercessions of Pres. Marcos and the First Lady. This is so because access to
public records does not include the right to compel custodians of official records
to prepare lists, abstracts, summaries and the like in their desire to acquire
information on matters of public concern.

The respondent is therefore ordered to allow petitioners access to documents and


records evidencing loans granted to members of the Batasang Pambansa, as
petitioners may specify, subject to reasonable rules and regulations as the GSIS
may deem necessary.

SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT


FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET
AL., G.R. No. 16977, April 20, 2006

CARPIO MORALES, J.:

The Facts:

In the exercise of its legislative power, the Senate of the Philippines, through its
various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, the attendance of officials and employees of
the executive department, bureaus, and offices including those employed in
Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole


issued invitations to various officials of the Executive Department for them to
appear on September 29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project). The public

hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged overpricing and other unlawful provisions of
the contract covering the North Rail Project.

On September 28, 2005, the President of the Philippines issued E.O. 464,
Ensuring Observance of the Principle of Separation of Powers, Adherence to the
Rule on Executive Privilege and Respect for the Rights of Public Officials
Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution,
and For Other Purposes, which, pursuant to Section 6 thereof, took effect
immediately. The salient provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. In


accordance with Article VI, Section 22 of the Constitution and to implement the
Constitutional provisions on the separation of powers between co-equal branches
of the government, all heads of departments of the Executive Branch of the
government shall secure the consent of the President prior to appearing
before either House of Congress.
When the security of the State or the public interest so requires and the President
so states in writing, the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of
powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information
officially known to them by reason of their office and not made available to the
public to prejudice the public interest.
(b) Who are covered. The following are covered by this executive order:
1. Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
2. Generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the
executive privilege;

3. Philippine National Police (PNP) officers with rank of chief


superintendent or higher and such other officers who in the judgment of
the Chief of the PNP are covered by the executive privilege;
4. Senior national security officials who in the judgment of the National
Security Adviser are covered by the executive privilege; and
5. Such other officers as may be determined by the President.

I S S U E S:

1. Whether E.O. 464 violates the right of the people to information on matters of
public concern; and

H E L D:

E.O 464 likewise violates the constitutional provision on the right to


information on matters of public concern. There are clear distinctions between the
right of Congress to information which underlies the power of inquiry and the
right of the people to information on matters of public concern. For one, the
demand of a citizen for the production of documents pursuant to his right to
information does not have the same obligatory force as a subpoena duces tecum
issued by Congress. Neither does the right to information grant a citizen the
power to exact testimony from government officials. These powers belong only to
Congress and not to an individual citizen.

To the extent that investigations in aid of legislation are generally conducted in


public, however, any executive issuance tending to unduly limit disclosures of
information in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to information which they
can use in formulating their own opinions on the matter before Congress
opinions which they can then communicate to their representatives and other

government officials through the various legal means allowed by their freedom of
expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and
be responsive to the peoples will. Yet, this open dialogue can be effective only
to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues
and have access to information relating thereto can such bear fruit.183 (Emphasis
and underscoring supplied)

The impairment of the right of the people to information as a consequence


of E.O. 464 is, therefore, in the sense explained above, just as direct as its
violation of the legislatures power of inquiry.

1-a. Legaspi vs. CSC, 150 SCRA 530


1-b. Brilliantes vs. Chang, Aug. 14, 1990
1-c. Canlas vs. Vazquez, July 3, 1990
1-d. Aquino-Sarmiento vs. Manuel Morato, November 13, 1991
2. Tanada vs. Tuvera, 146 SCRA 44
3. Baldoza vs. Dimaano, 71 SCRA 14
4. Lantaco vs. Lllamas, 108 SCRA 502
5. Subido vs. Ozaeta, 80 Phil. 383

CHAPTER IX - THE CONSTITUTIONAL

RIGHT TO FORM AND JOIN ASSOCIATIONS

Section 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, societies for purposes not contrary to law shall not be
abridged.

1. Freedom of Association, 100 SCRA 100

2. The fundamental right of self-organization,108 SCRA 390

3. The right of self-organization of managerial employees,47 SCRA 434

4. Read:

1. In re: ATTY. EDILLON, 84 SCRA 554


2. Tarnate vs. Noriel, 100 SCRA 93
3. Samahan ng Manggagawa vs. Noriel, 108 SCRA 381
4. Villar vs. Inciong, April 20,l983
5. P. vs. Ferrer, 48 SCRA 382
6. P. vs. Ferrer, 56 SCRA 793 (Read the dissenting opinion of Justice
FERNANDO in both cases)

CHAPTER X - THE POWER


OF EMINENT DOMAIN

Section 9. Private property shall not be taken for public use without just compensation

1. The inherent power of eminent domain,93 SCRA 663

2. Who may exercise it? How about a barangay? Yes with the Presidents
approval.

Read:

1. Barangay Matictic vs. Elbinias, 148 SCRA 83

2. Procedure for the exercise of said power; Extent of payment to be made before writ of
possession shall be issued in favor of the government.

Value of property expropriated for national government projects; Writ of


possession when it shall be issued by the court; when Rule 67 of the Rules of
Court and when RA 8974 shall apply; full payment of just compensation before
government takes over.

REPUBLIC OF THE PHILIPPINES VS. JUDGE GINGOYON, 478 SCRA


474

Tinga, J.

Facts:

In 2003, the Supreme Court held in AGAN VS. PIATCO, 402 SCRA 612
that the CONCESSION AGREEMENT FOR THE BUILD OPERATE

TRANSFER ARRANGEMENT OF THE NINOY AQUINO INTERNATIONAL


AIRPORT PASSENGER TERMINAL II between the Philippine Government and
the Philippine International Air Terminals Co., Inc. (PIATCO) as well as the
amendments thereto is void for being contrary to law and public policy. On
Motion for Reconsideration (420 SCRA 420), the Supreme Court held that:

This Court, however, is not unmindful of the reality that the structures
comprising the NAIA IPT III facility are almost complete and that funds have
been spent by PIATCO in their construction. For the government to take over the
said facility, IT HAS TO COMPENSATE RESPONDENT PIATCO as builder
of the said structures. The compensation must be just and in accordance with
law and equity FOR THE GOVERNMENT CAN NOT UNJUSTLY
ENRICH ITSELF AT THE EXPENSE OF PIATCO AND ITS
INVESTORS.

On December 21, 2004, the Government filed a complaint for expropriation with
the RTC of Pasay City seeking a writ of possession authorizing to take immediate
possession and control over NAIA 3 facilities and deposited the amount of P3.0B
in cash with Land Bank of the Philippines representing the assessed value of the
terminals assessed value for taxation purposes.

On the same day, Judge Gingoyon issued an Order directing the issuance of a writ
of possession to the government to take or enter upon the possession of the
NAIA 3 facilities. It held that it is the ministerial duty of the government to issue
writ of possession upon deposit of the assessed value of the property subject of
expropriation.

However, on January 4, 2005, Judge Gingoyon issued another Order


supplementing the December 21, 2004 Order. It pointed out that the earlier orders
to the amount to be deposited by the government was based on Section 2, Rule 67
when what should be applicable is RA 8974 and therefore ordered that the amount
of US$62,343,175.77 be released to PIATCO instead of the amount in the
December 21, 2004 Order.

On January 7, 2005, Judge Gingoyon issued another Order directing the


appointment of three (3) Commissioners to determine just compensation for the
NAIA 3 Complex.

Both Orders were questioned by the government as having been issued with grave
abuse of discretion.
ISSUES:
1. What law is applicable in this expropriation case: Rule 67 of the Rules of Court
or RA 8974?
2. If RA 8974 will be used, may the court used the provision of Rule 67 on the 3
commissioners to determine just compensation.

HELD:

1.

Application of Rule 67 would violate the AGAN Doctrine which provides that
for the government to take over the said NAIA 3 facility, IT HAS TO
COMPENSATE RESPONDENT PIATCO AS BUILDER OF THE SAID
STRUCTURES. If Section 2, Rule 67 will be applied, PIATCO would be
enjoined from receiving the just compensation even if the government takes over
the NAIA 3 facility. It is sufficient that the government deposits the amount equal
to the assessed value of the facilities. It would violate the proscription in the
AGAN Decision that the government must pay first the just compensation before
taking over the facilities.

So when shall Rule 67 be used in expropriation cases and when shall RA 8974
be used?

In all National government projects or national infrastructure


projects, like those covered by the Build-Operate-Transfer, RA 8974 shall be
followed. The rest, Rule 67 shall apply.

Differences between the two laws on expropriation:

1. Under Rule 67, the government merely deposits the assessed value of the property
subject of expropriation and can have a writ of possession over the same while under RA
8974, the scheme of immediate payment (100%) shall be followed.
2. Under Rule 67, there can be writ of possession even if the owner of the property has not
received a single centavo while under RA 8974, as in this case, Writ of Possession may
not be issued in favor of the government UNTIL ACTUAL RECEIPT by PIATCO of the
preferred value of just compensation.

Upon issuance of the writ in favor of the government, however, it could


already exercise acts of ownership over the NAIA 3 facilities.

The just compensation to be paid by the government shall be determined within


60 days from the finality of the decision based on Section 4, RA 8974.

Rule 67 on the appointment of three (3) commissioners to determine just


compensation may be used since RA 8974 does not provide for such procedure.

Just Compensation; Amount to be deposited in court before a Writ of Possession


may be issued by the court in favor of the government; When to apply Rule 67
and when to apply RA No. 8974; Who owns the interest of the initial amount
deposited for the purpose of issuing writ of possession

REPUBLIC OF THE PHILIPPINES VS. HOLY TRINITY REALTY


DEVELOPMENT CORPORATION, G.R. No. 172410, April 14, 2008

THE FACTS:

On 29 December 2000, petitioner Republic of the Philippines, represented


by the Toll Regulatory Board (TRB), filed with the RTC a Consolidated
Complaint for Expropriation against landowners whose properties would be
affected by the construction, rehabilitation and expansion of the North Luzon
Expressway. The suit was docketed as Civil Case No. 869-M-2000 and raffled to
Branch 85, Malolos, Bulacan. Respondent Holy Trinity Realty and Development
Corporation (HTRDC) was one of the affected landowners.

On 18 March 2002, TRB filed an Urgent Ex-Parte Motion for the issuance
of a Writ of Possession, manifesting that it deposited a sufficient amount to cover
the payment of 100% of the zonal value of the affected properties, in the total
amount of P28,406,700.00, with the Land Bank of the Philippines, South Harbor
Branch (LBP-South Harbor), an authorized government depository. TRB
maintained that since it had already complied with the provisions of Section 4 of
Republic Act No. 8974184[5] in relation to Section 2 of Rule 67 of the Rules of
Court, the issuance of the writ of possession becomes ministerial on the part of
the RTC.

The RTC issued, on 19 March 2002, an Order for the Issuance of a Writ of
Possession.
On 3 March 2003, HTRDC filed with the RTC a Motion to Withdraw
Deposit, praying that the respondent or its duly authorized representative be
allowed to withdraw the amount of P22,968,000.00, out of TRBs advance deposit
of P28,406,700.00 with LBP-South Harbor, including the interest which
accrued thereon.

Thereafter, the RTC allowed the release of the principal amount together
with the interest to the respondent but on Motion for Reconsideration of the TRB,
it disallowed the withdrawal of the interest reasoning out that the said issue will
be included in the second stage of expropriation, that is, the determination of just
compensation.

The private respondent elevated the issue to the Court of Appeals which
ruled that the respondent is entitled to the interest by way of accession.

Hence, this petition of the government before the Supreme Court.

I S S U E:

Who has the right over the interest of the amount deposited representing the zonal
value of the property sought to be expropriated? The expropriator or the
landowner?

HELD:

The petition is without merit.

The TRB claims that there are two stages185[11] in expropriation


proceedings, the determination of the authority to exercise eminent domain and
the determination of just compensation. The TRB argues that it is only during the
second stage when the court will appoint commissioners and determine claims for
entitlement to interest, citing Land Bank of the Philippines v. Wycoco186[12] and
National Power Corporation v. Angas.187[13]

The TRB further points out that the expropriation account with LBP-South
Harbor is not in the name of HTRDC, but of DPWH. Thus, the said expropriation
account includes the compensation for the other landowners named defendants in
Civil Case No. 869-M-2000, and does not exclusively belong to respondent.

The said argument is without merit because it failed to distinguish between


the expropriation procedures under Republic Act No. 8974 and Rule 67 of the
Rules of Court. Republic Act No. 8974 and Rule 67 of the Rules of Court speak of

different procedures, with the former specifically governing expropriation


proceedings for national government infrastructure projects. Thus, in Republic v.
Gingoyon,188[14] we held:

There are at least two crucial differences between the respective


procedures under Rep. Act No. 8974 and Rule 67. Under the statute, the
Government is required to make immediate payment to the property owner
upon the filing of the complaint to be entitled to a writ of possession,
whereas in Rule 67, the Government is required only to make an initial
deposit with an authorized government depositary. Moreover, Rule 67
prescribes that the initial deposit be equivalent to the assessed value of the
property for purposes of taxation, unlike Rep. Act No. 8974 which provides, as
the relevant standard for initial compensation, the market value of the property as
stated in the tax declaration or the current relevant zonal valuation of the Bureau
of Internal Revenue (BIR), whichever is higher, and the value of the
improvements and/or structures using the replacement cost method.

xxxx

Rule 67 outlines the procedure under which eminent domain may be


exercised by the Government. Yet by no means does it serve at present as the
solitary guideline through which the State may expropriate private property. For
example, Section 19 of the Local Government Code governs as to the exercise by
local government units of the power of eminent domain through an enabling
ordinance. And then there is Rep. Act No. 8974, which covers expropriation
proceedings intended for national government infrastructure projects.

Rep. Act No. 8974, which provides for a procedure eminently more
favorable to the property owner than Rule 67, inescapably applies in instances
when the national government expropriates property for national government
infrastructure projects. Thus, if expropriation is engaged in by the national
government for purposes other than national infrastructure projects, the assessed
value standard and the deposit mode prescribed in Rule 67 continues to apply.

There is no question that the proceedings in this case deal with the
expropriation of properties intended for a national government infrastructure

project. Therefore, the RTC correctly applied the procedure laid out in Republic
Act No. 8974, by requiring the deposit of the amount equivalent to 100% of the
zonal value of the properties sought to be expropriated before the issuance of a
writ of possession in favor of the Republic.

The controversy, though, arises not from the amount of the deposit, but as
to the ownership of the interest that had since accrued on the deposited amount.

Whether the Court of Appeals was correct in holding that the interest
earned by the deposited amount in the expropriation account would accrue to
HRTDC by virtue of accession, hinges on the determination of who actually owns
the deposited amount, since, under Article 440 of the Civil Code, the right of
accession is conferred by ownership of the principal property:

Art. 440. The ownership of property gives the right by accession to


everything which is produced thereby, or which is incorporated or attached
thereto, either naturally or artificially.

The principal property in the case at bar is part of the deposited amount in
the expropriation account of DPWH which pertains particularly to HTRDC. Such
amount, determined to be P22,968,000.00 of the P28,406,700.00 total deposit,
was already ordered by the RTC to be released to HTRDC or its authorized
representative. The Court of Appeals further recognized that the deposit of the
amount was already deemed a constructive delivery thereof to HTRDC:

When the [herein petitioner] TRB deposited the money as advance


payment for the expropriated property with an authorized government depositary
bank for purposes of obtaining a writ of possession, it is deemed to be a
constructive delivery of the amount corresponding to the 100% zonal valuation
of the expropriated property. Since [HTRDC] is entitled thereto and indisputably
the owner of the principal amount deposited by [herein petitioner] TRB,
conversely, the interest yield, as accession, in a bank deposit should likewise
pertain to the owner of the money deposited.189[15]

Since the Court of Appeals found that the HTRDC is the owner of the
deposited amount, then the latter should also be entitled to the interest which
accrued thereon.

The deposit was made in order to comply with Section 4 of Republic Act
No. 8974, which requires nothing less than the immediate payment of 100% of the
value of the property, based on the current zonal valuation of the BIR, to the
property owner. Thus, going back to our ruling in Republic v. Gingoyon190[16]:

It is the plain intent of Rep. Act No. 8974 to supersede the system of
deposit under Rule 67 with the scheme of immediate payment in cases
involving national government infrastructure projects.

The critical factor in the different modes of effecting delivery which gives
legal effect to the act is the actual intention to deliver on the part of the party
making such delivery.191[17] The intention of the TRB in depositing such amount
through DPWH was clearly to comply with the requirement of immediate
payment in Republic Act No. 8974, so that it could already secure a writ of
possession over the properties subject of the expropriation and commence
implementation of the project. In fact, TRB did not object to HTRDCs Motion to
Withdraw Deposit with the RTC, for as long as HTRDC shows (1) that the
property is free from any lien or encumbrance and (2) that respondent is the
absolute owner thereof.192[18]

A close scrutiny of TRBs arguments would further reveal that it does not
directly challenge the Court of Appeals determinative pronouncement that the
interest earned by the amount deposited in the expropriation account accrues to
HTRDC by virtue of accession. TRB only asserts that HTRDC is entitled only to
an amount equivalent to the zonal value of the expropriated property, nothing
more and nothing less.

We agree in TRBs statement since it is exactly how the amount of the


immediate payment shall be determined in accordance with Section 4 of Republic
Act No. 8974, i.e., an amount equivalent to 100% of the zonal value of the
expropriated properties. However, TRB already complied therewith by depositing
the required amount in the expropriation account of DPWH with LBP-South

Harbor. By depositing the said amount, TRB is already considered to have paid
the same to HTRDC, and HTRDC became the owner thereof. The amount earned
interest after the deposit; hence, the interest should pertain to the owner of the
principal who is already determined as HTRDC. The interest is paid by LBPSouth Harbor on the deposit, and the TRB cannot claim that it paid an amount
more than what it is required to do so by law.

Since the respondent is the owner of P22,968,000.00, it is entitled by right


of accession to the interest that had accrued to the said amount only.

We are not persuaded by TRBs citation of National Power Corporation v.


Angas and Land Bank of the Philippines v. Wycoco, in support of its argument that
the issue on interest is merely part and parcel of the determination of just
compensation which should be determined in the second stage of the proceedings
only. We find that neither case is applicable herein.

The issue in Angas is whether or not, in the computation of the legal rate
of interest on just compensation for expropriated lands, the applicable law is
Article 2209 of the Civil Code which prescribes a 6% legal interest rate, or
Central Bank Circular No. 416 which fixed the legal rate at 12% per annum. We
ruled in Angas that since the kind of interest involved therein is interest by way of
damages for delay in the payment thereof, and not as earnings from loans or
forbearances of money, Article 2209 of the Civil Code prescribing the 6% interest
shall apply. In Wycoco, on the other hand, we clarified that interests in the form of
damages cannot be applied where there is prompt and valid payment of just
compensation.

The case at bar, however, does not involve interest as damages for delay in
payment of just compensation. It concerns interest earned by the amount
deposited in the expropriation account.

Under Section 4 of Republic Act No. 8974, the implementing agency of


the government pays just compensation twice: (1) immediately upon the filing of
the complaint, where the amount to be paid is 100% of the value of the property
based on the current relevant zonal valuation of the BIR (initial payment); and (2)
when the decision of the court in the determination of just compensation becomes

final and executory, where the implementing agency shall pay the owner the
difference between the amount already paid and the just compensation as
determined by the court (final payment)

As a final note, TRB does not object to HTRDCs withdrawal of the


amount of P22,968,000.00 from the expropriation account, provided that it is able
to show (1) that the property is free from any lien or encumbrance and (2) that it
is the absolute owner thereof. The said conditions do not put in abeyance the
constructive delivery of the said amount to HTRDC pending the latters
compliance therewith. Article 1187 of the Civil Code provides that the effects of
a conditional obligation to give, once the condition has been fulfilled, shall
retroact to the day of the constitution of the obligation. Hence, when HTRDC
complied with the given conditions, as determined by the RTC in its Orderdated
21 April 2003, the effects of the constructive delivery retroacted to the actual date
of the deposit of the amount in the expropriation account of DPWH.

BIGLANG-AWA VS. JUDGE BACALLA, 354 SCRA 562

Pursuant to Section 2, Rule 67 of the 1997 Rules of Civil Procedure and the
doctrine laid down IN THE ROBERN DEVELOPMENT CASE, the only
requisites for the immediate entry by the government in expropriation cases
are:

1. the filing of a complaint for expropriation sufficient in form and substance; and

2. the making of a deposit equivalent to the ASSESSED VALUE OF THE PROPERTY


SUBJECT TO EXPROPRIATION.

The owners of the expropriated land are entitled to legal interest on the
compensation eventually adjudged from the date the condemnor takes possession
of the land until the full compensation is paid to them or deposited in court.

Requisites before immediate possession or writ of possession may be issued in


expropriation cases, involving local government units as the expropriating agency:

1. Complaint sufficient in form and substance; and


2. Payment of 15% of the Market value as appearing in the latest Tax Declaration.

THE CITY OF ILOILO VS. JUDGE LEGASPI, RTC 22, ILOILO CITY,
444 SCRA 269

Requisites before the expropriator is allowed immediate entry on the property


subject of expropriation if the expropriator is a local government unit.

The expropriator may immediately enter the property subject of expropriation


proceedings if the following requisites are present:

1. the complaint for expropriation filed in court is sufficient in form and substance; and
2. the expropriator must deposit the amount equivalent to 15% of the fair market
value of the property to be expropriated based on its current tax declaration.

But if the government fails to use the property expropriated for the purpose for which it
was intended, the landowner has the right to buy-back the same.

MACTAN-CEBU INTERNATIONAL AIRPORT


AUTHORITY and AIR TRANSPORTATION OFFICE vs.
BERNARDO LOZADA, JR., ET AL., G.R. No. 176625,
February 25, 2010

NACHURA, J.:
Subject of this case is Lot No. 88-SWO-25042 (Lot No. 88), with an area of 1,017
square meters, more or less, located in Lahug, Cebu City. Its original owner was
Anastacio Deiparine when the same was subject to expropriation proceedings, initiated
by the Republic of the Philippines (Republic), represented by the then Civil Aeronautics
Administration (CAA), for the expansion and improvement of the Lahug Airport. The
case was filed with the then Court of First Instance of Cebu, Third Branch, and docketed
as Civil Case No. R-1881.
As early as 1947, the lots were already occupied by the U.S. Army. They were
turned over to the Surplus Property Commission, the Bureau of Aeronautics, the National
Airport Corporation and then to the CAA.
During the pendency of the expropriation proceedings, respondent Bernardo L.
Lozada, Sr. acquired Lot No. 88 from Deiparine. Consequently, Transfer Certificate of
Title (TCT) No. 9045 was issued in Lozadas name.
On December 29, 1961, the trial court rendered judgment in favor of the Republic
and ordered the latter to pay Lozada the fair market value of Lot No. 88, adjudged at
P3.00 per square meter, with consequential damages by way of legal interest computed
from November 16, 1947the time when the lot was first occupied by the airport.
Lozada received the amount of P3,018.00 by way of payment.
The affected landowners appealed. Pending appeal, the Air Transportation Office
(ATO), formerly CAA, proposed a compromise settlement whereby the owners of the lots
affected by the expropriation proceedings would either not appeal or withdraw their
respective appeals in consideration of a commitment that the expropriated lots would be
resold at the price they were expropriated in the event that the ATO would abandon the
Lahug Airport, pursuant to an established policy involving similar cases. Because of this
promise, Lozada did not pursue his appeal. Thereafter, Lot No. 88 was transferred and
registered in the name of the Republic under TCT No. 25057.
The projected improvement and expansion plan of the old Lahug Airport, however,
was not pursued.
Lozada, with the other landowners, contacted then CAA Director Vicente Rivera,
Jr., requesting to repurchase the lots, as per previous agreement. The CAA replied that
there might still be a need for the Lahug Airport to be used as an emergency DC-3
airport. It reiterated, however, the assurance that should this Office dispose and resell
the properties which may be found to be no longer necessary as an airport, then the policy
of this Office is to give priority to the former owners subject to the approval of the
President.
On November 29, 1989, then President Corazon C. Aquino issued a Memorandum
to the Department of Transportation, directing the transfer of general aviation operations

of the Lahug Airport to the Mactan International Airport before the end of 1990 and, upon
such transfer, the closure of the Lahug Airport.
Sometime in 1990, the Congress of the Philippines passed Republic Act (R.A.) No.
6958, entitled An Act Creating the Mactan-Cebu International Airport Authority,
Transferring Existing Assets of the Mactan International Airport and the Lahug Airport to
the Authority, Vesting the Authority with Power to Administer and Operate the Mactan
International Airport and the Lahug Airport, and For Other Purposes.

From the date of the institution of the expropriation proceedings up to the present,
the public purpose of the said expropriation (expansion of the airport) was never actually
initiated, realized, or implemented. Instead, the old airport was converted into a
commercial complex. Lot No. 88 became the site of a jail known as Bagong Buhay
Rehabilitation Complex, while a portion thereof was occupied by squatters. The old
airport was converted into what is now known as the Ayala I.T. Park, a commercial area.
Thus, on June 4, 1996, petitioners initiated a complaint for the recovery of possession and
reconveyance of ownership of Lot No. 88. The case was docketed as Civil Case No.
CEB-18823 and was raffled to the Regional Trial Court (RTC), Branch 57, Cebu City.
In their Answer, petitioners asked for the immediate dismissal of the complaint.
They specifically denied that the Government had made assurances to reconvey Lot No.
88 to respondents in the event that the property would no longer be needed for airport
operations. Petitioners instead asserted that the judgment of condemnation was
unconditional, and respondents were, therefore, not entitled to recover the expropriated
property notwithstanding non-use or abandonment thereof.
After pretrial, but before trial on the merits, the parties stipulated on the following
set of facts:
(1)

The lot involved is Lot No. 88-SWO-25042 of the Banilad Estate,


situated in the City of Cebu, containing an area of One Thousand
Seventeen (1,017) square meters, more or less;

(2)

The property was expropriated among several other properties in


Lahug in favor of the Republic of the Philippines by virtue of a
Decision dated December 29, 1961 of the CFI of Cebu in Civil Case
No. R-1881;

(3)

The public purpose for which the property was expropriated was for
the purpose of the Lahug Airport;

(4)

After the expansion, the property was transferred in the name of


MCIAA; [and]

(5)

On November 29, 1989, then President Corazon C. Aquino directed


the Department of Transportation and Communication to transfer
general aviation operations of the Lahug Airport to the Mactan-Cebu
International Airport Authority and to close the Lahug Airport after
such transfer.

On October 22, 1999, the RTC rendered its Decision, disposing as follows:
WHEREFORE, in the light of the foregoing, the Court hereby
renders judgment in favor of the plaintiffs, Bernardo L. Lozada, Sr., and
the heirs of Rosario Mercado, namely, Vicente M. Lozada, Marcia L.
Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores L. Gacasan,
Socorro L. Cafaro and Rosario M. Lozada, represented by their attorneyin-fact Marcia Lozada Godinez, and against defendants Cebu-Mactan
International Airport Authority (MCIAA) and Air Transportation Office
(ATO):

1. ordering MCIAA and ATO to restore to plaintiffs the possession


and ownership of their land, Lot No. 88 Psd-821 (SWO-23803), upon
payment of the expropriation price to plaintiffs; and

2. ordering the Register of Deeds to effect the transfer of the


Certificate of Title from defendant[s] to plaintiffs on Lot No. [88],
cancelling TCT No. 20357 in the name of defendant MCIAA and to issue
a new title on the same lot in the name of Bernardo L. Lozada, Sr. and the
heirs of Rosario Mercado, namely: Vicente M. Lozada, Mario M. Lozada,
Marcia L. Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores
L. Gacasan, Socorro L. Cafaro and Rosario M. Lozada.

No pronouncement as to costs.
Aggrieved, petitioners interposed an appeal to the CA. After the filing of the
necessary appellate briefs, the CA rendered its assailed Decision dated February 28,
2006, denying petitioners appeal and affirming in toto the Decision of the RTC, Branch
57, Cebu City. Petitioners motion for reconsideration was, likewise, denied in the
questioned CA Resolution dated February 7, 2007.
Hence, this petition arguing that: (1) the respondents utterly failed to prove that
there was a repurchase agreement or compromise settlement between them and the
Government; (2) the judgment in Civil Case No. R-1881 was absolute and unconditional,
giving title in fee simple to the Republic; and (3) the respondents claim of verbal
assurances from government officials violates the Statute of Frauds.
The petition should be denied.
Petitioners anchor their claim to the controverted property on the supposition that
the Decision in the pertinent expropriation proceedings did not provide for the condition
that should the intended use of Lot No. 88 for the expansion of the Lahug Airport be
aborted or abandoned, the property would revert to respondents, being its former owners.
Petitioners cite, in support of this position, Fery v. Municipality of Cabanatuan, which
declared that the Government acquires only such rights in expropriated parcels of land as
may be allowed by the character of its title over the properties
If x x x land is expropriated for a particular purpose, with the condition
that when that purpose is ended or abandoned the property shall return to
its former owner, then, of course, when the purpose is terminated or
abandoned the former owner reacquires the property so expropriated. If x
x x land is expropriated for a public street and the expropriation is granted
upon condition that the city can only use it for a public street, then, of
course, when the city abandons its use as a public street, it returns to the
former owner, unless there is some statutory provision to the contrary. x x
x. If, upon the contrary, however, the decree of expropriation gives to the
entity a fee simple title, then, of course, the land becomes the absolute
property of the expropriator, whether it be the State, a province, or
municipality, and in that case the non-user does not have the effect of
defeating the title acquired by the expropriation proceedings. x x x.

When land has been acquired for public use in fee simple,
unconditionally, either by the exercise of eminent domain or by purchase,
the former owner retains no right in the land, and the public use may be
abandoned, or the land may be devoted to a different use, without any
impairment of the estate or title acquired, or any reversion to the former
owner. x x x.

Contrary to the stance of petitioners, this Court had ruled otherwise in Heirs of
Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport Authority, thus

Moreover, respondent MCIAA has brought to our attention a


significant and telling portion in the Decision in Civil Case No. R-1881
validating our discernment that the expropriation by the predecessors of
respondent was ordered under the running impression that Lahug Airport
would continue in operation

As for the public purpose of the expropriation


proceeding, it cannot now be doubted. Although Mactan
Airport is being constructed, it does not take away the
actual usefulness and importance of the Lahug Airport: it is
handling the air traffic both civilian and military. From it
aircrafts fly to Mindanao and Visayas and pass thru it on
their flights to the North and Manila. Then, no evidence
was adduced to show how soon is the Mactan Airport to be
placed in operation and whether the Lahug Airport will be
closed immediately thereafter. It is up to the other
departments of the Government to determine said matters.
The Court cannot substitute its judgment for those of the
said departments or agencies. In the absence of such
showing, the Court will presume that the Lahug Airport
will continue to be in operation (emphasis supplied).

While in the trial in Civil Case No. R-1881 [we] could have simply
acknowledged the presence of public purpose for the exercise of eminent
domain regardless of the survival of Lahug Airport, the trial court in its
Decision chose not to do so but instead prefixed its finding of public
purpose upon its understanding that Lahug Airport will continue to be in
operation. Verily, these meaningful statements in the body of the
Decision warrant the conclusion that the expropriated properties would
remain to be so until it was confirmed that Lahug Airport was no longer
in operation. This inference further implies two (2) things: (a) after the
Lahug Airport ceased its undertaking as such and the expropriated lots
were not being used for any airport expansion project, the rights vis--vis
the expropriated Lots Nos. 916 and 920 as between the State and their
former owners, petitioners herein, must be equitably adjusted; and (b) the
foregoing unmistakable declarations in the body of the Decision should
merge with and become an intrinsic part of the fallo thereof which under

the premises is clearly inadequate since the dispositive portion is not in


accord with the findings as contained in the body thereof.
Indeed, the Decision in Civil Case No. R-1881 should be read in its entirety,
wherein it is apparent that the acquisition by the Republic of the expropriated lots was
subject to the condition that the Lahug Airport would continue its operation. The
condition not having materialized because the airport had been abandoned, the former
owner should then be allowed to reacquire the expropriated property.
On this note, we take this opportunity to revisit our ruling in Fery, which involved
an expropriation suit commenced upon parcels of land to be used as a site for a public
market. Instead of putting up a public market, respondent Cabanatuan constructed
residential houses for lease on the area. Claiming that the municipality lost its right to the
property taken since it did not pursue its public purpose, petitioner Juan Fery, the former
owner of the lots expropriated, sought to recover his properties. However, as he had
admitted that, in 1915, respondent Cabanatuan acquired a fee simple title to the lands in
question, judgment was rendered in favor of the municipality, following American
jurisprudence, particularly City of Fort Wayne v. Lake Shore & M.S. RY. Co., McConihay
v. Theodore Wright, and Reichling v. Covington Lumber Co., all uniformly holding that
the transfer to a third party of the expropriated real property, which necessarily resulted in
the abandonment of the particular public purpose for which the property was taken, is not
a ground for the recovery of the same by its previous owner, the title of the expropriating
agency being one of fee simple.
Obviously, Fery was not decided pursuant to our now sacredly held constitutional
right that private property shall not be taken for public use without just compensation. It
is well settled that the taking of private property by the Governments power of eminent
domain is subject to two mandatory requirements: (1) that it is for a particular public
purpose; and (2) that just compensation be paid to the property owner. These
requirements partake of the nature of implied conditions that should be complied with to
enable the condemnor to keep the property expropriated.
More particularly, with respect to the element of public use, the expropriator should
commit to use the property pursuant to the purpose stated in the petition for expropriation
filed, failing which, it should file another petition for the new purpose. If not, it is then
incumbent upon the expropriator to return the said property to its private owner, if the
latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an
intrinsic flaw, as it would lack one indispensable element for the proper exercise of the
power of eminent domain, namely, the particular public purpose for which the property
will be devoted. Accordingly, the private property owner would be denied due process of
law, and the judgment would violate the property owners right to justice, fairness, and
equity.
In light of these premises, we now expressly hold that the taking of private
property, consequent to the Governments exercise of its power of eminent domain,
is always subject to the condition that the property be devoted to the specific public

purpose for which it was taken. Corollarily, if this particular purpose or intent is
not initiated or not at all pursued, and is peremptorily abandoned, then the former
owners, if they so desire, may seek the reversion of the property, subject to the
return of the amount of just compensation received. In such a case, the exercise of
the power of eminent domain has become improper for lack of the required factual
justification.
On the matter of the repurchase price, while petitioners are obliged to reconvey Lot
No. 88 to respondents, the latter must return to the former what they received as just
compensation for the expropriation of the property, plus legal interest to be computed
from default, which in this case runs from the time petitioners comply with their
obligation to respondents.
Respondents must likewise pay petitioners the necessary expenses they may have
incurred in maintaining Lot No. 88, as well as the monetary value of their services in
managing it to the extent that respondents were benefited thereby.

GABATIN VS. LAND BANK OF THE PHILIPPINES, 444 SCRA 176

What is the basis of the just compensation for expropriation proceedings in


connection with the agrarian reform program of the government.

Held:

The taking of private lands under the agrarian reform program of the government
partakes of the nature of an expropriation proceedings. As such, in computing the
just compensation, it is the value of the land at the time of the taking, not at
the time of the rendition of the judgment, which should be taken into
consideration.

BANK OF THE PHILIPPINE ISLANDS VS. COURT OF APPEALS, 441


SCRA 637

Just compensation in expropriation cases; value of the property when?

Just compensation is defined as the full and fair equivalent of the property taken
from its owner by the expropriator. The measure is not the takers gain, but the
owners loss. Market value is that sum of money which a person desirous but not
compelled to buy, and an owner willing but not compelled to sell, would agree on
as a price to be given and received therefore.

The just compensation is determined as of the date of taking of the property or the
filing of the complaint for expropriation, WHICHEVER COMES FIRST.

4. Basis of just compensation

Read:

a. NPC vs. Jocson, February 25, 1992


a-1. Ansaldo vs. Tantuico, Aug. 3, 1990
b. Mun. of Makati vs. CA, Oct. 1, 1990
c. Reublic vs. IAC, 185 SCRA 572
d. Mun. of Talisay vs. Ramirez, 183 SCRA 528
e. NPC vs. CA, 129 SCRA 665
f. Maddumba vs. GSIS, 182 SCRA 281

Read also:

1. Meaning of just compensation in eminent domain proceedings, 29 SCRA 868

Basis of just compensation (Exceptional case)

BERKENKOTTER, INC. VS. COURT OF APPEALS AND REPUBLIC OF


THE PHILIPPINES, December 14, 1992

Cruz, J.

Facts:

1. On June 18, 1982, Vicente Viray, then President of Apolinario Apacible School
of Fisheries, a government institution in Nasugbu, Batangas, sent the petitioner a
written offer to buy the property of the latter with an area of 10,640 square meters
for its 5-year expansion program;

2. That the petitioner expressed willingness to sell at P50.00 per square meter in
its reply;

3. Viray then requested the Office of the Provincial Assessor of the Province of
Batangas to appraise the land and the latter fixed its market value at P32.00 per
square meter;

4. Viray then wrote the petitioner and expressed willingness to buy the latter's
property at P32.00 per square meter. The petitioner, however, stuck to its original
valuation. Later on, it said that its property had in fact appreciated to as much as
P100.00 per square meter;

5. On October 28, 1983, the Republic of the Philippines filed a complaint for the
expropriation of the petitioner's property and invoked the assessment made by the
Provincial Appraisal Committee of the Provincial Assessor of Batangas in the
amount of P32.00. The government likewise sought immediate possession of the
property upon deposit of 10% of the total assessment in accordance with PD 48;

6. Berkenkotter originally questioned the purpose of the expropriation but later


abandoned this objection and concentrated only on what it called the
"underappraisal" of the subject land;

7. The RTC then appointed a panel of commissioners in accordance with Rule 67,
ection 5, of the Rules of Court, to determine the just compensation to be paid for
the land;

8. On September 23, 1985, the panel of commissioners submitted its report to the
trial court and pegged the market value at P85.00 per square meter;

9. The Republic of the Philippines objected and pointed to three (3) contracts of
sale executed by the petitioner in 1985 whereby it sold three (3) tracts of land
similar in topography and adjacent to the property in question for the unit price of
only P19.18 per square meter;

10. The court directed the commissioners to convene anew and to receive
additional evidence. However, in its second report dated April 1, 1987, the panel
reiterated its original recommendation of P85.00/sq. m. or a total of P904,400.00
for the entire area sought to be expropriated. The trial court acting on this
recommendation rendered judgment requiring the Republic to pay the petitioner
the amount of P904,400.00 for the entire area sought to be expropriated;

11. The government appealed the trial court's decision to the Court of Appeals
which rendered a decision REVERSING THE LOWER COURT'S DECISION
and declaring that the fair market value which should be the basis in computing
the amount to be paid by the government to the petitioner shall be P19.18, the

market value according set by the petitioner if we follow the three (3) deeds of
sale it executed in favor of three (3) different individuals;

12. The petitioner was therefore constrained to file this instant petition claiming
that the Court of Appeals erred in holding that P19.18 per square meter should be
the basis of the computation for the just compensation of its property because:

a. Viray even offered the amount of P32.00 per squaremeter as the fair market
value;

b. that P32.00 per square meter was the appraised value made by the Office of the
Provincial Assessor of Batangas; and

c. the complaint itself prays that the market value be pegged at P32.00 per square
meter.

Issue:
WHAT SHOULD BE THE BASIS IN THE COMPUTATION OF THE JUST
COMPENSATION: P32.00/SQ. M. IN ACCORANCE WITH THE APPRAISAL
OF THE PROVINCIAL ASSESSOR; P100.00/SQ.M. AS CLAIMED BY THE
OWNER; P85.00/SQ. M. AS RECOMMENDED BY THE BOARD OF
COMMISSIONERS APPOINTED BY THE COURT TO EVALUATE THE
SAME, OR P19.18 PER SQUARE METER WHICH WAS THE SELLING
PRICE IN AN ADJACENT LOT SOLD BY THE PETITIONER TO THREE
PRIVATE INDIVIDUALS.

Held.
The basis in the computation of just compensation shall be P19.18 per square
meter or the price which the petitioner sold its other lots to other individuals.

This is so because there is no showing that the petitioner had any special reason
for granting each of the individual vendees the extraordinary discount amounting
to as much as 75% of its claimed real value of the land. To all appearances, they
were ordinary buyers who bought the land for their own private purposes only and
not for the public purpose invoked by the government.

The petitioner's claim that the value as appearing in the deeds of sale in the three
other parcels is not a reliable index of just compensation "because owners usually
undervalue the selling price of the property to lower the expenses they would
have to pay for capital gains tax and documentary stamps tax" is practically an
admission that it did not indicate the actual consideration in the three transactions
where it was made to appear that the price per square meter was only P19.18. If
this was the purpose of the petitioner when it executed the 3 deeds of sale, then IT
IS SURELY HOIST NOW BY ITS OWN PETARD. AND RIGHTLY SO, FOR
IT CANNOT BE ALLOWED TO PROFIT FROM ITS OWN DECEPTION AND
CLAIM THAT THE SUBJECT PROPERTY SHOULD BE ASSESSED AT THE
HIGHER RATE IT CLANDESTINELY AGREED UPON WITH THE BUYERS.

The Court is disappointed that the petitioner should demand a higher price from
the republic, which needs the land for a public purpose, when it was willing to
accept less from the three individual buyers who had only their private interests to
serve.

The fact that the petitioner sold the 3 other parcels of land at P19.18 per square
meter which are admittedly of the same topography as that subject of this case, it
impliedly admitted that the price for the latter should be the same as the former.
This rule of consistency is best expressed in the familiar saying, surely not
unknown to the petitioner, THAT WHAT IS SAUCE FOR THE GOOSE IS ALSO
SAUCE FOR THE GANDER.

Just compensation is defined as the full and fair equivalent of the proerty sought
to be expropriated (Association of Small Landowners vs. Secretary of Agrarian
Reform, 175 SCRA 378). The measure is not the taker's gain but the owner's loss.
he compensation, to be just, must be fair not only to the owner but also to the
taker.

To determine just compensation, the trial court should first ascertain the market
value of the property, to which should be added the consequential benefits which
may arise from the expropriation.

The market value of the property is the price that may be agreed upon by the
parties willing but not compelled to enter into a contract of sale.

Among the factors to be considered in arriving at the fair market value are:

1. cost of acquisition;
2. the current value of like proerties;
3. its actual or potential uses;
4. particular case of lands;
5. their size, shape, location; and
6. the tax declarations thereon.

Finally, note that as held in the case of Republic vs. Santos, 141 SCRA 30, the
market value as recommended by the board of commissioners appointed by the
court were at best only ADVISORY AND PERSUASIVE AND BY NO MEANS
FINAL OR BINDING.

2. NHA vs. Reyes, 123 SCRA 245


3. Manotok vs. CA, May 21,1987
4. EPZA vs. Dulay, April 29,l987
5. Lagunzad vs. CA, 154 SCRA 199

When it is considered for "public use":

6. Sumulong vs. Guererro, 154 SCRA 461


7. Republic vs. CA, 154 SCRA 428
8.Cosculluela vs. CA, 164 SCRA 393

5. Requisite of "taking" in eminent domain cases

Read:

1. Rep. vs. Castellvi, 58 SCRA 336

Requisites of taking:
1. the expropriator must enter the property;
2. the entrance must not be for just a momentary period;
3. the entry must be under warrant of color or title;
4. the property must be devoted for public use; and
5. the owner must be ousted from beneficial use of his land.

2. Ignacio vs. Guererro, 150 SCRA 369


3. Garcia vs. CA, 102 SCRA 597

6. Not a valid exercise of eminent domain

Read:

1. City of Manila vs. Chinese Community, 40 Phil. 349 ( A private property which
is devoted to public use may not be expropriated for another public purpose.)

2. De Knecht vs. Bautista, 100 SCRA 660

REPUBLIC OF THE PHILIPPINES VS. CRISTINA DE KNECHT AND


THE COURT OF APPEALS, G.R. NO. 87335, February 12, 1989

Expropriation

Gancayco, J.
Facts:
1. On February 20, 1979, the Rep. of the Philippines initiated an expropriation
proceedings against the owners of the houses standing along Fernando Rein-Del
Pan streets, among them Cristina de Knecht together with Concepcion Cabarrus,
and some other fifteen defendants in Civil Case No. 7001-P;

2. In June, 1979, the Republic of the Philippines prayed for the issuance of a writ
of possession of the property to be expropriated on the ground that it had already
deposited with the PNB 10% of the amount of compensation stated in the
complaint; that on June 14, 1979, the Lower Court issued a writ of possession
authorizing the Republic to enter into the properties condemned and created a
committee to determine just compensation;

3. On July 16, 1979, De Knecht went to the Supreme Court on a petition for
certiorari and prohibition directed against the June 14, 1979 order of the lower
court;

4. On October 30, 1980, the Supreme Court rendered its decision granting the
petition for certiorari and prohibition and directing that the Order of the
respondent Judge dated June 14, 1979 be SET ASIDE and the respondent Judge is
permanently enjoined from taking any further action on Civil Case No. 7001-P;

5. On August 8, 1981, the defendants in Civil Case No. 7001- moved for the
dismissal of said case since the decision of the Supreme Court is already final;

6. On September 2, 1983, the Republic moved for the dismissal of the case due to
the enactment of BP 340 expropriating the same properties for the same purpose.
On the same date, the Court dismissed the case. The defendants moved for a
reconsideration which the Court denied;

7. De Knecht appealed the Order dismissing the case to the Court of Appeals who
on December 28, 1988 issued its decision setting aside the Order appealed from
and dismissing the expropriation proceedings before the lower court on the
ground that the choice of the above-mentioned streets as the line through which
the EDSA should be extended is arbitrary and should not receive judicial
approval;

8. The Republic of the Philippines filed a Petition for Review with the Supreme
Court.

Issue:
Whether or not the legislature could still pass a law expropriating the lots of the
private respondents despite the existence of a final decision of the Supreme Court
which held that choice of their lot to be used as an extension of EDSA is
arbitrary?

Held:
It is true that there is already a final decision of the Supreme Court to the effect
that the choice of the Fernando Rein-Del Pan Streets is arbitrary and should not
receive judicial approval. However, it is equally true that the Constitution and our
laws may expropriate private properties after the payment of just compensation.
When on February 17, 1983, the Batasang Pambansa passed BP 340 expropriating
the same properties for the same purpose, IT APPEARS THAT THE SAME WAS
BASED ON SUPERVENING EVENTS THAT OCCURRED after the decision of
the SC in De Knecht vs. Bautista in 1980. The social impact factor which
persuaded the Court to consider this extension has disappeared because of the fact
that the residents of the area have been relocated and duly compensated and only
DE KNECHT now is left while her property is only about 5% of the area to be
expropriated. The Republic could continue it expropriation proceedings
considering the supervening events after the decision was rendered.

BP Bilang 340 THEREFORE EFFECTIVELY SUPERSEDED THE


AFORESAID FINAL AND EXECUTORY DECISION OF THE SUPREME
COURT. X x x THE COURT AGREES IN THE WISDOM AND NECESSITY
OF ENACTING BP 340. THUS THE ANTERIOR DECISION OF THIS COURT
MUST YIELD TO THIS SUBSEQUENT LEGISLATIVE FIAT.

************************

Cruz, J., concurring


Supervening events have changed the factual basis of the SC's decision to justify
the subsequent enactment of the statute. If we are sustaining the legislation, it is
not because we concede that the lawmakers can nullify the findings of the Court
in the exercise of its discretion. It is simply because we ourselves have found that
under the changed situation, the present expropriation is no longer arbitrary.

I MUST ADD THAT THIS DECISION IS NOT A REVERSAL OF THE


ORIGINAL DE KNECHT CASE, WHICH WAS DECIDED UNDER A
DIFFERENT SET OF FACTS.

3. REPUBLIC OF THE PHILIPPINES VS. CRISTINA DE KNECHT AND THE


COURT OF APPEALS, G.R. NO. 87335, February 12, 1989

3-a. Limitations of the power of expropriation, 3 SCRA 706

7. When shall we base the computation of the value of the property expropriated:
at the time of taking or at the time of the institution of the expropriation
proceedings?

8. Eminent domain cases, in general

Read:

1. City of Baguio vs. NAWASA, 106 Phil. 144


2. Garcia vs. CA, 102 SCRA 620
3. Municipality of Daet vs. CA, 93 SCRA 503
4. Salas vs. Jarencio, 46 SCRA 734
5. Arce vs. Genito, Feb. 27, 1976
6. Guido vs. RPA, 84 Phil. 847
7. Rep. vs. Baylosis, 96 Phil. 461
8. Mataas na Lupa vs. Dimayuga, 130 SCRA 30
9. San Diego vs. Valdellon, 80 SCRA 305
10. Haguisan vs. Emilia, 131 SCRA 517
11. Heirs of Ardona vs. Reyes, 125 SCRA 220

12. Commissioner vs. Burgos, March 31,1980


13. Republic vs. Juan, 92 SCRA 29

CHAPTER XI - THE NON-IMPAIRMENT CLAUSE

Section 10. No law impairing the obligation of contracts shall be passed.

1. Read:

1. Kabiling, et al., vs. NHA, December 18,l987


2. Clements vs. Nolting, 42 Phil. 702
3. Co vs. PNB, 114 SCRA 842
4. Lozano vs. Martinez,146 SCRA 323
5. Rutter vs. Esteban,93 Phil. 68
6. Ilusorio vs. CAR, 17 SCRA 25
7. Ortigas vs. Feati Bank, 94 SCRA 533
8. Ganzon vs. Insierto, 123 SCRA 713
9. Del Rosario vs. De los Santos, March 21, 1968
10. Abella vs. NLRC, 152 SCRA 140
11. PVBEU vs. PVB, 189 SCRA 14

Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall
not be denied to any person by reason of poverty.

CHAPTER XII - RIGHTS DURING


CUSTODIAL INVESTIGATION

Section 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

Rights of a person under custodial detention for one suspected or arrested as a


terrorist.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law,


Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15,
2007 (This Law shall be automatically suspended one (1) month before and two
(2) months after the holding of any election)

Section 21. Rights of a person under custodial detention.- The moment a person
charged with or suspected of the crime of terrorism or the crime of conspiracy to
commit terrorism is apprehended or arrested and detained, he shall forthwith be
informed by the arresting police or law enforcement officers to whose custody the
person concerned is brought, of his or her right:

1. to be informed of the nature and cause of his arrest, to remain silent and to have
competent and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel of his or her choice, the police or law enforcement officers
concerned shall immediately contact the free legal assistance unit of the IBP or the Public
attorneys office (PAO). It shall be the duty of the free legal assistance unit of the IBP or
the PAOs thus contacted to immediately visit the person detained and provide him with
legal assistance. These rights cannot be waived except in writing and in the presence of
the counsel of choice;
2. informed of the cause or causes of his detention in the presence of his legal counsel;
3. allowed to communicate freely with his legal counsel and to confer with them at any time
without restriction;
4. allowed to communicate freely and privately without restrictions with the members of his
family or with his nearest relatives and be visited by them; and
5. allowed freely to avail of the services of a physician or physicians of choice.

Section 23. Requirement for an official custodial logbook and its contents.The police or other law enforcement custodial unit in whose care and control the
person charged with or suspected of the crime of terrorism or the crime of
conspiracy to commit terrorism has been placed under custodial arrest and
detention shall keep a securely and orderly maintained official logbook, which is
hereby declared as public document and opened and made available for inspection
and scrutiny of the lawyer or lawyers of the person under custody or any member
of his family or relative by consanguinity within the fourth civil degree or his
physician at any time of the day without any form of restriction. The logbook
shall contain a clear and concise record of:

1. name, description, and address of the detained person;


2. date and exact time of his initial admission for custodial arrest and detention;
3. the name and address of the physician/s who examined him physically and medically;
4. the state of his health and his physical condition a the time of his initial admission for
custodial detention;

5. the date and time of each removal of the detained person from his cell for interrogation or
for any purpose;
6. the date and time of his return to his cell;
7. name and address of the physician who examined him physically and medically;
8. summary of the physical and medical findings after each interrogation;
9. names and addresses of the members of his family and relatives;
10. names and addresses of the persons who visited him;
11. date and time of such visits;
12. date and time when the detained person requested to communicate or confer with his
lawyer;
13. the date and time of visits by his legal counsel and the date and time of departure; and
14. all other important events bearing on all relevant details regarding the treatment of the
detained person while under custodial arrest or detention.

Section 24. No torture or coercion in Investigation and interrogation. No threat,


intimidation, or coercion, and no act which will inflict any form of physical pain
or torment, or mental, moral, or psychological pressure on the detained person
which shall vitiate his free will shall be employed in his investigation and
interrogation; otherwise, the evidence obtained from said detained person shall
be in its entirety, absolutely not admissible and usable as evidence in any judicial,
quasi-judicial, legislative, or administrative investigation, inquiry, proceeding or
hearing.

The summary of the rights of an accused during custodial investigation (from the time of
arrest) under the Constitution, laws and jurisprudence.

THE PEOPLE OF THE PHILIPPINES VS. MAHINAY, G.R. No. 122485,


February 1, 1999

Per Curiam:

Considering the heavy penalty of death and in order to ensure that evidence
against an accused were obtained through lawful means, the Court, as
guardian of the rights of the people, lays down the PROCEDURE, GUIDELINES,
AND DUTIES WHICH THE ARRESTING, DETAINING, INVITING OR
INVESTIGATING OFFICER OR HIS COMPANIONS MUST OBSERVE AT
THE TIME OF MAKING THE ARREST AND AGAIN AT AND DURING THE
TIME OF THE CUSTODIAL INVESTIGATION OR INTERROGATION IN
ACCORDANCE with the Constitution, jurisprudence and Republic Act No.
7438. It is high time to educate our law enforcement agencies who neglect
either by ignorance or indifference the so-called Miranda rights which had
become insufficient and which the court must update in the light of new legal
developments.

1. The person arrested, detained, invited or under custodial investigation must be informed
in a language known to and understood by him of the reason for the arrest and he must be
shown a copy of the warrant of arrest, if any; Every other warnings, information or
communication must be in a language known to and understood by said person;

2. He must be warned that he has the right to remain silent and that any statement he makes
may be used as evidence against him;

3. He must be informed that he has the right to be assisted at all times and have the presence
of an independent and competent lawyer, preferably of his own choice;

4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer,
one will be provided for him; and that a lawyer may also be engaged by any person in his
behalf, or may be appointed by the court upon petition of the person arrested or one
acting in his behalf;

5. That whether or not the person arrested has a lawyer, , he must be informed that no
custodial investigation in any form shall be conducted except in the presence of his
counsel or after a valid waiver has been made;

6. The person arrested must be informed that, at any time, he has the right to communicate
or confer by the most expedient means---telephone, radio, letter or messenger---with his
lawyer (either retained or appointed), any member of his immediate family; or any
medical doctor, priest or minister chosen by him or by any one from his immediate
family or by his counsel, or be visited by/confer with duly accredited national or
international non-governmental organization. IT SHALL BE THE RESPONSIBILITY
OF THE OFFICER TO ENSURE THAT THIS IS ACCOMPLISHED;

7. He must be informed that he has the right to waive any of said rights provided it is made
voluntarily, knowingly and intelligently and ensure that he understood the same;

8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it
must be done in writing AND in the presence of counsel, otherwise, he must be warned
that the waiver is void even if he insist on his waiver and chooses to speak;

9. That the person arrested must be informed that he may indicate in any manner at any time
or state of the process that he does not wish to be questioned with the warning that once
he makes such indication, the police may not interrogate him if the same had not yet
commenced, or the interrogation has begun;

10. The person arrested must be informed that his initial waiver of his right to remain silent,
the right to counsel or any of his rights does not bar him from invoking it at any other
time during the process, regardless of whether he may have answered some questions or
volunteered some information or statements;

11. He must be informed that any statement OR EVIDENCE, as the case may be, obtained in
violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part,
SHALL BE INADMISSIBLE IN EVIDENCE.

(NOTE: Any violation of the foregoing rights of the accused shall entitle him to
sue for damages against the arresting or investigating officers in accordance with

RA7438, not to mention the possible criminal liability of said persons under
existing laws).

LATEST CASES ON THE RIGHTS OF A PERSON DURING CUSTODIAL


INVESTIGATION

Rights during custodial investigation; when custodial investigation is deemed to


have started; right to be informed of the nature and cause of accusation against
him.

THE PEOPLE OF THE PHILIPPINES VS. JOSE TING LAN UY, JR., et al.,
475 SCRA 248

Ynares-Santiago, J.

Facts:

For allegedly diverting and collecting funds of the National Power Corporation
intended for the purchase of US Dollars from the United Coconut Planters Bank
(UCPB), the accused-appellants were charged of Malversation through
Falsification of Commercial Documents as defined and penalized under Arts. 217
and 171 [8] in relation to Article 48 of the Revised Penal Code. After trial, all
accused were convicted by the Sandiganbayan.

While the Information charged the accused of willful and intentional


commission of the acts complained of while the Decision found the accused
guilty of inexcusable negligence.

Accused Ochoa interposed an appeal and claimed that his conviction was based
on his alleged sworn statement and the transcript of stenographic notes of a
supposed interview with an NPC personnel and the report of the NBI. He
maintains that he signed the sworn statement while confined a the Philippine heart
center and upon assurance that it would not be used against him. He was not
assisted by counsel nor he was apprised of his constitutional rights when he
executed the affidavit. He likewise claimed that his constitutional rights to be
informed of the nature and cause of accusation against and due process were
violated.

Held:

1. Even if the information charges willful malversation, conviction for malversation through
negligence may still be adjudged if the evidence ultimately proves that mode of
commission of the offense. (Diaz vs. Sandiganbayan, 302 SCRA 118). This was the
doctrine laid down in the case of Samson vs. Court of appeals, 103 Phil. 277.

2. The claim that his affidavit is inadmissible in evidence in accordance with section 12 [1]
of the Bill of Rights is not tenable. The investigation under said provision refers to
custodial investigation where a suspect has already been taken into police custody and
that the investigating officers begin to ask questions to elicit information and confessions
or admissions from the suspect. Succinctly stated, custodial investigation refers to the
critical pre-trial stage when the investigation ceases to be a general inquiry into an
unsolved crime but has began to focus on a particular person as a suspect (People vs.
Duenas, Jr., 426 SCRA 666). Clearly, therefore, the rights enumerated by the accused
are not available BEFORE GOVERNMENT INVESTIGATORS ENTER THE
PICTURE. The protective mantle of section 12, article III does not apply to
administrative investigations (People vs. Judge Ayson, 175 SCRA 216); confession to a
private individual (Kimpo vs. CA, 232 SCRA 53); verbal admission made to a radio
announcer who was not a part of the investigation (People vs. Ordono, 334 SCRA 673);
or even to a Mayor approached as a personal confidante and not in his official capacity
(People vs. Zuela, 323 SCRA 589). In fact, even a videotaped interview where the
accused willingly admit his guilt in the presence of newsmen is not covered by the said
provision though the trial courts were warned by the supreme Court to take extreme
caution in admitting similar confessions because of the distinct possibility that the police,
with the connivance of unscrupulous media practitioners, may attempt to legitimize
coerced extrajudicial confessions and place them beyond the exclusionary rule by having
an accused admit an offense on television (People vs. Endino, 353 SCRA 307).

Clearly, the confession of the accused was obtained during an administrative


investigation by NPC and therefore, the same was not covered by Section 12, Art.
III of the Constitution.

(NOTE: In People vs. Andam, the confession made before a Municipal


Mayor was held admissible as evidence).

PEOPLE VS. FIGUEROA, 335 SCRA 349


Under Art. III, Section 12 [1] of the Constitution, a suspect in custodial
investigation must be:

1. informed of his right to remain silent;


2. warned that anything he says can be and will be used against him;
3. told that he has the right to counsel, and that if he is indigent, a lawyer will be appointed
to represent him.

In this case, accused-appellant was given no more than a perfunctory


recitation of his rights, signifying nothing more than a feigned compliance with
the constitutional requirements. (People vs. Samolde, July 31, 2000)

It is always incumbent on the prosecution to prove at the trial that, prior to incustody questioning, the confessant was informed of his constitutional rights. The
presumption of regularity of official acts does not prevail over the constitutional
presumption of innocence. Hence, in the absence of proof that the arresting
officers complied with the above constitutional safeguards, extrajudicial
statements, whether inculpatory or exculpatory, made during the custodial
investigation, are inadmissible not only against the declarant but with more so
against 3rd persons. THIS IS SO EVEN IF SUCH STATEMENTS ARE GOSPEL
TRUTH AND VOLUNTARILY GIVEN.

Such statements are useless EXCEPT AS EVIDENCE AGAINST THE VERY


POLICE AUTHORITIES WHO VIOLATED THE SUSPECTS RIGHTS.

PEOPLE VS. BARIQUIT, 341 SCRA 600

When custodial investigation is deemed to have started.

The protection under Section 12 , Art. III of the Constitution begins when a
person is taken into custody for investigation of his possible participation in the
commission of a crime, or from the time he is singled out as a suspect in the
commission of the crime, although not yet in custody.

Custodial investigation begins when it is no longer a general inquiry into an


unsolved crime but starts to focus on a particular person as a suspect, i.e., when
the police investigator starts interrogating or exacting confession from the suspect
in connection with an alleged offense.

THE PLACE OF INTERROGATION IS NOT DETERMINATIVE OF THE


EXISTENCE OR ABSENCE OF CUSTODIAL INVESTIGATION BUT
THE TONE AND MANNER OF QUESTIONING BY THE POLICE
AUTHORITIES. Thus, there was custodial investigation when the police
authorities, upon their arrest of some of the accused, immediately asked them
regarding their participation in the commission of the crime , even while they
were still walking along the highway on their way to the police station. This is
line with the provisions of RA 7438 which makes it applicable even when a
person is merely invited for questioning.

PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000;
PEOPLE VS. MAYORGA, G.R. NO. 135405, 346 SCRA 458, NOVEMBER
29, 2000.

However, spontaneous statements voluntarily given, as where appellant orally


admitted killing the victim before the barangay captain (who is neither a
police officer nor a law enforcement agent), do not fall under custodial
investigation. Such admission, even without the assistance of a lawyer, does not
violate appellants constitutional rights AND THEREFORE ADMISSIBLE IN
EVIDENCE.

PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000;
PEOPLE VS. SAMOLDE, G.R. NO. 128551, 336 SCRA 632, JUL. 31, 2000.

To be admissible in evidence, an extrajudicial confession must be:


(i) voluntary;
(ii) made with the assistance of competent and independent counsel;
(iii) express; and
(iv) in writing.

A suspects confession, whether verbal or non-verbal, when taken without


the assistance of counsel, without a valid waiver of such assistance, regardless of
the absence of coercion or the fact that it had been voluntarily given, is
inadmissible in evidence, even if appellants confession were gospel truth.

Requisites of a valid extrajudicial confession

PEOPLE OF THE PHILIPPINES vs. ROMULO TUNIACO,


ET AL.,
G.R. No. 185710, January 10, 2010
ABAD, J.:
This case is about the requirements of a valid extrajudicial confession and the
establishment of the existence of corpus delicti in murder cases.

The Facts and the Case


The city prosecutor of General Santos City charged the accused Romulo Tuniaco,
Jeffrey Datulayta, and Alex Aleman with murder before the Regional Trial Court (RTC)
of General Santos City in Criminal Case 8370.
Based on the findings of the RTC, in the morning of June 13, 1992 some police
officers from the Lagao Police Sub-Station requested police officer Jaime Tabucon of the
Central Police Station of General Santos City homicide division to take the statement of
accused Alex Aleman regarding the slaying of a certain Dondon Cortez. On his arrival at
the sub-station, Tabucon noted the presence of Atty. Ruperto Besinga, Jr. of the Public
Attorneys Office (PAO) who was conversing with those taken into custody for the
offense. When queried if the suspects would be willing to give their statements, Atty.
Besinga said that they were.
Some other police officer first took the statement of accused Jeffrey Datulayta.
Officer Tabucon next took the statement of accused Aleman, whom he observed to be in
good physical shape.
Before anything else, officer Tabucon informed accused Aleman in Cebuano of
his constitutional right to remain silent and to the assistance of counsel of his own choice
and asked him if he was willing to give a statement. Aleman answered in the
affirmative. When asked if he had any complaint to make, Aleman said that he had
none. When Aleman said that he had no lawyer, Tabucon pointed to Atty. Besinga who
claimed that he was assisting all the suspects in the case. Tabucon warned Aleman that
anything he would say may be used against him later in court. Afterwards, the police
officer started taking down Alemans statement.
Accused Aleman said that in the course of a drinking bout with accused Datulayta
and Tuniaco at around 9 p.m. on June 6, 1992, Dondon Cortez threatened to report his
drinking companions illegal activities to the police unless they gave him money for his
forthcoming marriage. According to Aleman, Datulayta and Tuniaco had already planned
to kill Cortez in Tupi, South Cotabato, for making the same threats and now they decided
to do it. They got Cortez drunk then led him out supposedly to get the money he needed.
The three accused brought Cortez to Apopong near the dump site and, as they
were walking, accused Aleman turned on Cortez and stabbed him on the stomach.
Accused Datulayta, on the other hand, drew out his single shot homemade M16 pistol and
shot Cortez on the head, causing him to fall. Datulayta handed over the gun to Aleman
who fired another shot on Cortezs head. Accused Tuniaco used the same gun to pump
some bullets into Cortezs body. Then they covered him with rice husks.
After taking down the statement, Tabucon explained the substance of it to accused
Aleman who then signed it in the presence of Atty. Besinga.
On June 15, 1992 the police brought Aleman to the City Prosecutors Office
where he swore to his statement before an assistant city prosecutor. In the afternoon,

accused Datulayta and Aleman led Tabucon, the city prosecutor, and a police inspector, to
the dump site where they left their victims body. After some search, the group found a
spot covered with burnt rice husks and a partially burnt body of a man. About a foot
from the body, they found the shells of a 5.56 caliber gun and an armalite rifle.
On being arraigned, all three accused, assisted by Atty. Besinga, pleaded not
guilty to the murder charge. After the prosecution rested its case, accused Tuniaco filed a
demurrer to evidence which the Court granted, resulting in the dismissal of the case
against him. On being re-arraigned at his request, accused Datulayta pleaded guilty to the
lesser offense of Homicide. The trial court sentenced him to imprisonment of six years
and one day and to pay P50,000.00 to the victims family.
For some reason, the trial court had Aleman subjected to psychiatric examination at
the Davao Mental Hospital. But, shortly after, the hospital sent word that Aleman had
escaped. He was later recaptured. When trial in the case resumed, Alemans new PAO
lawyer raised the defense of insanity. This prompted the court to require the Provincial
Jail Warden to issue a certification regarding Alemans behavior and mental condition
while in jail to determine if he was fit to stand trial. The warden complied, stating that
Aleman had been observed to have good mental condition and did not commit any
infraction while in jail.
Although the prosecution and defense stipulated that Atty. Besinga assisted accused
Aleman during the taking of his extrajudicial confession, the latter, however, recanted
what he said to the police during the trial. He testified that sometime in 1992, some
police officers took him from his aunts house in Purok Palen, Labangal, General Santos
City, and brought him to the Lagao police station. He was there asked to admit having
taken part in the murder of Cortez. When he refused, they tortured him until he agreed to
sign a document admitting his part in the crime.
Accused Aleman also testified that he could not remember having been assisted
by Atty. Besinga during the police investigation. He even denied ever knowing the
lawyer. Aleman further denied prior association with accused Tuniaco and Datulayta. He
said that he met them only at the city jail where they were detained for the death of
Cortez.
On October 8, 2001 the RTC rendered judgment, finding accused Aleman guilty
beyond reasonable doubt of the crime charged, and sentenced him to suffer the penalty of
reclusion perpetua. The court also ordered him to pay death indemnity of P70,000.00
and moral damages of P50,000.00 to the heirs of Cortez.
On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 00311, the court
rendered judgment on January 21, 2008, affirming the decision of the RTC with the
modification that directed accused Aleman and Datulayta to indemnify the heirs of
Cortez, jointly and severally, in the amounts of P50,000.00 as civil indemnity;
P50,000.00 as moral damages; P25,000.00 as temperate damages; and P25,000.00 as
exemplary damages. Aleman appealed to this Court.

The Issues Presented


Accused Aleman raises two issues: a) whether or not the prosecution was able to
present evidence of corpus delicti; and b) whether or not accused Alemans extrajudicial
confession is admissible in evidence.
The Rulings of the Court
1.
Corpus delicti has been defined as the body, foundation, or substance of a
crime. The evidence of a dead body with a gunshot wound on its back would be evidence
that murder has been committed. Corpus delicti has two elements: (a) that a certain result
has been established, for example, that a man has died and (b) that some person is
criminally responsible for it. The prosecution is burdened to prove corpus delicti beyond
reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.
The defense claims that the prosecution failed to prove corpus delicti since it did
not bother to present a medical certificate identifying the remains found at the dump site
and an autopsy report showing such remains sustained gunshot and stab wounds that
resulted in death; and the shells of the guns used in killing the victim.
But corpus delicti need not be proved by an autopsy report of the dead victims
body or even by the testimony of the physician who examined such body. While such
report or testimony is useful for understanding the nature of the injuries the victim
suffered, they are not indispensable proof of such injuries or of the fact of death. Nor is
the presentation of the murder weapons also indispensable since the physical existence of
such weapons is not an element of the crime of murder.
Here, the police authorities found the remains of Cortez at the place pointed to by
accused Aleman. That physical confirmation, coming after his testimony of the gruesome
murder, sufficiently establishes the corpus delicti of the crime. Of course, that statement
must be admissible in evidence.
2.
There is no reason for it not to be. Confession to be admissible must be
a) voluntary; b) made with the assistance of a competent and independent counsel;
c) express; and d) in writing. These requirements were met here. A lawyer, not
working with or was not beholden to the police, Atty. Besinga, assisted accused Aleman
during the custodial investigation. Officer Tabucon testified that he saw accused Aleman,
before the taking of his statement, conversing with counsel at the police station. Atty.
Besinga did not dispute this claim.
Aleman alleges torture as the reason for the execution of the confession. The
appellate court is correct in ruling that such allegation is baseless. It is a settled rule that
where the defendant did not present evidence of compulsion, where he did not institute
any criminal or administrative action against his supposed intimidators, where no
physical evidence of violence was presented, all these will be considered as indicating
voluntariness. Here, although Aleman claimed that he bore torture marks on his head, he

never brought this to the attention of his counsel, his relatives, or the prosecutor who
administered his oath.
Accused Aleman claims, citing People v. Galit, that long questions followed by
monosyllabic answers do not satisfy the requirement that the accused is amply informed
of his rights. But this does not apply here. Tabucon testified that he spoke to Aleman
clearly in the language he knew. Aleman, joined by Atty. Besinga, even signed a
certification that the investigator sufficiently explained to him his constitutional rights
and that he was still willing to give his statement.
Further, Aleman asserts that he was lacking in education and so he did not fully
realize the consequences of a confession. But as the CA said, no law or jurisprudence
requires the police officer to ascertain the educational attainment of the accused. All that
is needed is an effective communication between the interrogator and the suspect to the
end that the latter is able to understand his rights. This appears to have been done in this
case.
Moreover, as the lower court noted, it is improbable that the police fabricated
Alemans confession and just forced him to sign it. The confession has details that only
the person who committed the crime could have possibly known. What is more, accused
Datulaytas confession corroborate that of Aleman in important details. Under the
doctrine of interlocking confessions, such corroboration is circumstantial evidence
against the person implicated in it.
Custodial Investigation before Bantay Bayan Members requires that the suspect be
informed of his Expanded Miranda Rights; otherwise, the evidence obtained shall be
inadmissible in evidence.

PEOPLE OF THE PHILIPPINES VS. ANTONIO LAUGA,


G.R. No. 186228, March 15, 2010
PEREZ, J.:
Consistent with the ruling of this Court in People v. Cabalquinto, the real name
and the personal circumstances of the victim, and any other information tending to
establish or compromise her identity, including those of her immediate family or
household members, are not disclosed in this decision.
The Facts
In an Information dated 21 September 2000, the appellant was accused of the
crime of QUALIFIED RAPE allegedly committed as follows:

That on or about the 15th day of March 2000, in the evening, at


Barangay xxx, municipality of xxx, province of Bukidnon, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, being the father of AAA with lewd design, with the use of force
and intimidation, did then and there, willfully, unlawfully and criminally
have carnal knowledge with his own daughter AAA, a 13 year[s]old minor
against her will.
On 12 October 2000, appellant entered a plea of not guilty. During the pre-trial
conference, the prosecution and the defense stipulated and admitted: (a) the correctness
of the findings indicated in the medical certificate of the physician who examined AAA;
(b) that AAA was only thirteen (13) years old when the alleged offense was committed;
and (c) that AAA is the daughter of the appellant. On trial, three (3) witnesses testified
for the prosecution, namely: victim AAA; her brother BBB; and one Moises Boy
Banting, a bantay bayan in the barangay. Their testimonies revealed the following:
In the afternoon of 15 March 2000, AAA was left alone at home. AAAs father,
the appellant, was having a drinking spree at the neighbors place. Her mother decided to
leave because when appellant gets drunk, he has the habit of mauling AAAs mother. Her
only brother BBB also went out in the company of some neighbors.
At around 10:00 oclock in the evening, appellant woke AAA up; removed his
pants, slid inside the blanket covering AAA and removed her pants and underwear;
warned her not to shout for help while threatening her with his fist; and told her that he
had a knife placed above her head. He proceeded to mash her breast, kiss her repeatedly,
and inserted his penis inside her vagina.
Soon after, BBB arrived and found AAA crying. Appellant claimed he scolded
her for staying out late. BBB decided to take AAA with him. While on their way to their
maternal grandmothers house, AAA recounted her harrowing experience with their
father. Upon reaching their grandmothers house, they told their grandmother and uncle
of the incident, after which, they sought the assistance of Moises Boy Banting.
Moises Boy Banting found appellant in his house wearing only his underwear. He
invited appellant to the police station, to which appellant obliged. At the police outpost,
he admitted to him that he raped AAA because he was unable to control himself.
The following day, AAA submitted herself to physical examination. Dra. Josefa
Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued the Medical
Certificate, which reads:
hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated
hymen; (+) minimal to moderate bloody discharges 2 to an alleged raping
incident

On the other hand, only appellant testified for the defense. He believed that the
charge against him was ill-motivated because he sometimes physically abuses his wife in
front of their children after engaging in a heated argument, and beats the children as a
disciplinary measure. He went further to narrate how his day was on the date of the
alleged rape.
The lone assignment of error in the appellants brief is that, the trial court gravely
erred in finding him guilty as charged despite the failure of the prosecution to establish
his guilt beyond reasonable doubt, because: (1) there were inconsistencies in the
testimonies of AAA and her brother BBB; (2) his extrajudicial confession before Moises
Boy Banting was without the assistance of a counsel, in violation of his constitutional
right; and (3) AAAs accusation was ill-motivated.
HELD
Appellant contests the admissibility in evidence of his alleged confession with a
bantay bayan and the credibility of the witnesses for the prosecution.
Admissibility in Evidence of an Extrajudicial Confession
before a Bantay Bayan
Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a
bantay bayan, the confession was inadmissible in evidence because he was not assisted
by a lawyer and there was no valid waiver of such requirement.
The case of People v. Malngan is the authority on the scope of the Miranda
doctrine provided for under Article III, Section 12(1) and (3) of the Constitution. In
Malngan, appellant questioned the admissibility of her extrajudicial confessions given to
the barangay chairman and a neighbor of the private complainant. This Court
distinguished. Thus:
Arguably, the barangay tanods, including the Barangay Chairman,
in this particular instance, may be deemed as law enforcement officer
for purposes of applying Article III, Section 12(1) and (3), of the
Constitution. When accused-appellant was brought to the barangay hall
in the morning of 2 January 2001, she was already a suspect, actually the
only one, in the fire that destroyed several houses x x x. She was,
therefore, already under custodial investigation and the rights guaranteed
by x x x [the] Constitution should have already been observed or applied
to her. Accused-appellants confession to Barangay Chairman x x x was
made in response to the interrogation made by the latter admittedly
conducted without first informing accused-appellant of her rights under
the Constitution or done in the presence of counsel. For this reason, the
confession of accused-appellant, given to Barangay Chairman x x x, as
well as the lighter found x x x in her bag are inadmissible in evidence
against her x x x.

[But such does] not automatically lead to her acquittal. x x x [T]he


constitutional safeguards during custodial investigations do not apply to
those not elicited through questioning by the police or their agents but
given in an ordinary manner whereby the accused verbally admits x x x as
x x x in the case at bar when accused-appellant admitted to Mercedita
Mendoza, one of the neighbors x x x [of the private complainant].
(Emphasis supplied)
Following the rationale behind the ruling in Malngan, this Court needs to
ascertain whether or not a bantay bayan may be deemed a law enforcement officer
within the contemplation of Article III, Section 12 of the Constitution.
In People of the Philippines v. Buendia, this Court had the occasion to mention
the nature of a bantay bayan, that is, a group of male residents living in [the] area
organized for the purpose of keeping peace in their community[,which is] an
accredited auxiliary of the x x x PNP.
Also, it may be worthy to consider that pursuant to Section 1(g) of Executive
Order No. 309 issued on 11 November 1987, as amended, a Peace and Order Committee
in each barangay shall be organized to serve as implementing arm of the City/Municipal
Peace and Order Council at the Barangay level. The composition of the Committee
includes, among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the
Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa; (4) a Barangay
Tanod; and (5) at least three (3) Members of existing Barangay-Based Anti-Crime or
neighborhood Watch Groups or a Non Government Organization Representative
well-known in his community.
This Court is, therefore, convinced that barangay-based volunteer
organizations in the nature of watch groups, as in the case of the bantay bayan, are
recognized by the local government unit to perform functions relating to the
preservation of peace and order at the barangay level. Thus, without ruling on the
legality of the actions taken by Moises Boy Banting, and the specific scope of duties and
responsibilities delegated to a bantay bayan, particularly on the authority to conduct a
custodial investigation, any inquiry he makes has the color of a state-related function
and objective insofar as the entitlement of a suspect to his constitutional rights
provided for under Article III, Section 12 of the Constitution, otherwise known as
the Miranda Rights, is concerned.
We, therefore, find the extrajudicial confession of appellant, which was taken
without a counsel, inadmissible in evidence.
Be that as it may, We agree with the Court of Appeals that the conviction of the
appellant was not deduced solely from the assailed extrajudicial confession but from the
confluence of evidence showing his guilt beyond reasonable doubt.

Voluntary and spontaneous confession of a suspect who is already under custody of the
police is admissible in evidence even in the absence of counsel.
People of the Philippines vs. victor villarino, g.r.no. 185012,
March 5, 2010
Facts:
On April 28, 1995, BBB, together with her 10-year old daughter AAA and
her younger son CCC went to the house of their relative in Barangay D to attend the
fiesta to be held the next day.
On even date, from 7:00 oclock to 9:00 oclock in the evening, SPO4 Jesus
Genoguin (SPO4 Genoguin) was in his house in Barangay D entertaining his guests,
one of whom was appellant. While personally serving food and drinks to appellant, SP04
Genoguin noticed that the latter was wearing a bracelet and a necklace with pendant.
Appellant even allowed SPO4 Genoguin to put on the bracelet.
On April 29, 1995, at around 9:00 oclock in the morning, the appellant who was
on his way to Barangay D, passed by the house of Rodrigo Olaje (Rodrigo). At that
time, Rodrigo noticed appellant wearing a bracelet and a necklace with pendant. He was
also wearing a white sleeveless t-shirt (sando).
At 11:00 oclock in the morning, appellant was at the house of BBBs aunt.
BBB offered him food. BBB also noticed that he was dressed in a white sando and
that he wore jewelry consisting of a bracelet and a necklace with pendant. At 1:00
oclock in the afternoon, he was seen wearing the same sando and jewelry while drinking
at the basketball court in Barangay D.
At around 3:00 oclock in the afternoon, BBB told AAA to go home to
Barangay D1 to get a t-shirt for her brother. AAA obeyed. However, she no longer
returned. While BBB was anxiously waiting for AAA in the house of her aunt in
Barangay D, she received information that a dead child had been found in Barangay
D1. She proceeded to the area where she identified the childs body as that of her
daughter, AAA.
At around 4:00 oclock in the afternoon, Rodrigo, who was the barangay captain
of Barangay D1 received information that a dead child was found in their barangay.
He instructed a barangay tanod to inform the police about the incident. Thereafter,
Rodrigo proceeded to the specified area together with other barangay tanods.
SPO4 Genoguin also went to the crime scene after being informed by his
commander. Upon arrival, he saw the corpse of a little girl behind a big boulder that was
about 10 meters away from the trail junction of the barangays. People had gathered
seven to 10 meters away from the dead body, but no one dared to approach.

AAAs lifeless body lay face up with her buttocks on top of a small rock. Her
body was slanted downward with her legs spread apart and dangling on the sides of the
small boulder. She was no longer wearing short pants and panty, and blood oozed from
her vagina. Wrapped around her right hand, which was positioned near her right ear, was
a white sando.
AAAs panty was found a meter away from her body, while her short pants was
about two meters farther. A bracelet and a pendant were also recovered from the crime
scene. Rodrigo and BBB identified these pieces of jewelry as those seen on the
appellant. They also identified the sando on AAAs arm as the appellants. Thus, the
hunt for appellant began.
On the same day, the appellant was found in the house of Aurelia Susmena near
the seashore of Barangay D1. He was drunk and violent. He resisted arrest and had to
be bodily carried to the motorboat that would take him to the municipal building in
Almagro, Samar. The arresting team made the appellant take off his clothes since they
were wet. When he complied, his briefs revealed bloodstains.
On May 2, 1995, the police brought appellant to Calbayog City for medical
examination since he had scratches and abrasions on his body. While waiting for a boat
ride at 4:00 oclock in the morning, the police team took a coffee break. SPO4 Genoguin
was momentarily left alone to guard the appellant. During this short period, the appellant
voluntarily admitted to SPO4 Genoguin that he committed the crime charged. He also
told SPO4 Genoguin that he could keep the pendant and bracelet if he would retrieve the
t-shirt and throw it into the sea. SPO4 Genoguin rejected the appellants offer and
reminded him of his right to a counsel and that everything the appellant said could be
used against him in court. Unperturbed, the appellant reiterated his offer.
When they boarded the motorboat, the appellant repeatedly offered to give SPO4
Genoguin P20,000.00 if he would throw the sando into the sea. However, the police
officer ignored the offer and instead reported the matter to the Chief of Police of
Almagro, SPO4 Basilio M. Yabao. Later, the appellants mother, Felicidad Mabute y
Legaspi, asked him not to testify against her son.
At the Calbayog District Hospital, Senior Resident Physician Dr. Jose V. Ong,
found that appellants body had 10 healed abrasions and two linear abrasions or scratches,
particularly, on his breast, knees, as well as right and left ears, that could have been
caused by fingernails.
On August 3, 1995, an Information was filed charging appellant Victor Villarino y
Mabute with the special complex crime of rape with homicide. The Information
contained the following accusatory allegations:
That on or about the 29th day of April, 1995, at about 5:00 oclock
in the afternoon, at Barangay D1, Municipality of Almagro, Province of
Samar, Philippines, and within the jurisdiction of this Honorable Court,

the above named accused, with lewd design, by means of force, violence
and intimidation, did then and there, willfully, unlawfully and feloniously
have carnal knowledge against a minor ten (10) years [sic], AAA,
without the latters consent and against her will, and thereafter, with
deliberate intent to kill, did then and there willfully, unlawfully and
feloniously inflict upon the said AAA mortal wounds on x x x different
parts of her body, which caused her untimely death.

CONTRARY TO LAW.
Appellant pleaded not guilty to the crime charged. After the termination of the
pre-trial conference, trial ensued.
The RTC found him guilty beyond reasonable doubt of the complex crime of
Rape with Homicide and sentenced to Death.
ISSUE:
Is accused-appellants voluntary confession to SPO4 Genoguin admissible in evidence?
HELD:
In the instant case, appellant voluntarily confessed to raping and killing AAA to
SPO4 Genoguin. He even offered to give the pieces of jewelry to the latter if his sando is
thrown into the sea. The appellant did not deny this accusation nor assail its truthfulness.
When appellant confessed to the crime, he was alone with SPO4 Genoguin, and
no force or intimidation was employed against him. The confession was spontaneously
made and not elicited through questioning. The trial court did not, therefore, err in
holding that compliance with the constitutional procedure on custodial interrogation is
not applicable in the instant case.
In People v. Dy, we held that:
Contrary to the defense contention, the oral confession made by
the Accused to Pat. Padilla that he had shot a tourist and that the gun he
had used in shooting the victim was in his bar which he wanted
surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9), is
competent evidence against him. The declaration of an accused
acknowledging his guilt of the offense charged may be given in evidence
against him (Sec. 29, Rule 130, Rules of Court). It may in a sense be also
regarded as part of the res gestae. The rule is that, any person, otherwise
competent as a witness, who heard the confession, is competent to testify

as to the substance of what he heard if he heard and understood all of it.


An oral confession need not be repeated verbatim, but in such a case it
must be given in substance (23 C.J.S. 196, cited in People v. Tawat, G.R.
No. 62871, May 25, 1985, 129 SCRA 431).

What was told by the Accused to Pat. Padilla was a spontaneous


statement not elicited through questioning, but given in an ordinary
manner. No written confession was sought to be presented in evidence as
a result of formal custodial investigation. (People v. Taylaran, G.R. No.
L-19149, October 31, 1981, 108 SCRA 373). The Trial Court, therefore,
cannot be held to have erred in holding that compliance with the
constitutional procedure on custodial interrogation is not applicable in the
instant case, as the defense alleges in its Error VII.
At any rate, even without his confession, appellant could still be convicted of the
complex crime of rape with homicide. The prosecution established his complicity in the
crime through circumstantial evidence which were credible and sufficient, and led to the
inescapable conclusion that the appellant committed the complex crime of rape with
homicide. When considered together, the circumstances point to the appellant as the
culprit.

2. Guidelines for police investigation

Read:

1.Escobedo vs. Illinois, 378 US 478


2. Miranda vs. Arizona, 384 US 436
3. P. vs. Duero, 104 SCRA 379

2-a. Duties of the Police or Arresting Officers

Read:

1. P. vs. Matos-Viduya, Sept. 11, 1990


1-a. P vs. Nicandro, 141 SCRA 289
2. P vs. Duhan, 142 SCRA 100
3. P vs. Caguioa, 95 SCRA 2
4. P vs. Ramos, 122 SCRA 312

3. To be informed of the Right to remain silent; cases in particular

Read:

1. Constitutional right to remain silent,104 SCRA 391


1-a. People vs. Marcos Jimenez, Dec. 10, 1991

Extrajudicial confession; counsel of choice

Right to counsel during custodial investigation; while making an extrajudicial


confession

PEOPLE VS. PATUNGAN, 354 SCRA 413

The accused was under coercive and uncounselled custodial investigation by the
police without a lawyer for 2 and a half days . Then, he was brought to the IBP
Office where a lawyer assisted him in his extrajudicial confession.

We are inclined to believe that when he was brought to the IBP Office, his body
and his will were in no position to raise any objection much less to complaint to
the IBP lawyer about what he has gone through. In fact, the IBP lawyer was
working on an appeal in another case while the extrajudicial confession was being
taken.

The mere presence of a lawyer is not sufficient compliance with the constitutional
requirement of assistance of counsel. Assistance of counsel must be effective,
vigilant and independent. A lawyer who could just hear the investigation going on
while working on another case hardly satisfies the minimum requirements of
effective assistance of counsel. Not only was the accused subjected to custodial
investigation without counsel, he was likewise denied effective assistance of
counsel during the taking of his extra-judicial confession.

PEOPLE V. JIMENEZ
G.R.No. 82604. December 10, 1991
NARVASA, J.:

FACTS:

On August 13, 1985, police authorities, acting upon a report, came upon the
corpse of Pelagio Jimenez below a cliff near a balite tree. The police investigators
learned that Marcos, the son of the deceased Pelagio Jimenez told his mother that
his father had not come home the previous night: that the search for the deceased,
who was living separately from them, commenced a day earlier but it was not
until the morning of the following day, August 13, 1985, that deceased Pelagio
was finally found dead. They also learned from the persons they interviewed of
circumstances that drew their suspicion to the son, Marcos and Robert, such as;
the bathing at the artesian well "as if washing away stains of blood"; the
deceased's violent quarrels with his children and occasions that he had been boxed
and hit by his children. The police had invited the deceased's widow and her sons
for questioning about the killing. A draft of the confession was prepared by the
investigating officer but Marcos was not able to sign the same due to the absence
of the judge before whom it is supposed to be sworn and signed. Marcos agreed to

come back and sign his statement, but upon his return, he, assisted by a former
judge whose presence was requested by the police authorities, refused to sign his
statement. Subsequently, an information for parricide was filed against the widow
and her sons, Marcos, Robert, and Wilkins. In an order dated July 21, 1986, the
trial court absolved the widow and Wilkins of any participation in the filling for
lack of proof. On December 12. 1986, the trial court found Marcos and Robert
guilty beyond reasonable doubt of the crime of parricide, noting that the unsigned
confession is admissible in evidence inasmuch as evidence aliunde corroborated
such confession. Both accused contest such ruling. Hence this appeal.

ISSUE:

Is the extrajudicial confession of Marcos admissible in evidence?

HELD:

No. Decision reversed.

Section 12 (1), Article III OF THE 1987 Constitution declares that a person being
investigated by the police as a suspect in an offense has the right, among others,
(1) to have a competent and independent counsel of his own choice and if he
cannot afford the services of counsel, he must be provided with one; and that (2)
said right cannot be waived except in writing and in the presence of counsel.

The lawyer who assists the suspect under custodial interrogation should be of
the latter's own choice, not one foisted on him by the police investigators or
other parties. In this case, the former judge whose assistance was requested
by the police was evidently not of Marcos Jimenez' own choice; she was the
police officers' own choice; she did not ask Marcos if was is willing to have
her represent him. This is not the mode of solicitation of legal assistance
contemplated by the constitution.

Furthermore, the former judge was not present when Marcos was being
interrogated by the police. While she asked him if he had voluntarily given the
statements contained in the typewritten document, this is far from being
substantial compliance with the constitutional duty of police investigators during
custodial interrogation.

The typewritten confession is unsigned and was in fact expressly rejected by


Marcos. Hence, the supposed waiver made therein of his constitutional right to
counsel of his own choice.

Neither can the confession prejudice his co-accused, his brother Robert, not only
because it was obtained in violation of the constitution but also because of the
principle of res inter alios acta.

The interrogation of Marcos Jimenez having been conducted without the


assistance of counsel, and no valid waiver of such right to counsel have been
made, not only the confession but also any admissible obtained in the course
thereof are inadmissible against him or his co accused. In view of the
inadmissibility in evidence of the confession, the rest of the evidence of the
prosecution is inadequate to overcome the presumption of innocence raised by the
fundamental law in favor of both the accused.

Extrajudicial confession without the assistance of counsel, inadmissible as


evidence; exception

PEOPLE VS. PANFILO CABILES, 284 SCRA 199; PEOPLE VS. TAN, 286
SCRA 207

Melo, J.

Even if the confession of the accused speaks of the truth, if it was made without
the assistance of counsel, it is inadmissible in evidence regardless of the absence
of coercion or even if it was voluntarily given.

In order that a confession is admissible, the following requisites must be present:

1. the confession must be voluntary;


2. the confession must be made with the assistance of a competent and independent counsel;
3. the confession must be express; and
4. the confession must be in writing.

The above requirements, however, are not applicable when the suspect makes an
spontaneous statement, not elicited through questioning by the authorities, BUT
GIVEN IN AN ORDINARY MANNER WHEREBY THE ACCUSED ORALLY
ADMITTED HAVING COMMITTED THE CRIME. This was the decision of the
Supreme Court in the case of PEOPLE VS. ANDAN, March 3, 1997 when the
accused made a voluntary and verbal confession to the Municipal Mayor that he
committed the crime imputed to him. As such, his uncounselled confession is
admissible in evidence.

PEOPLE VS. OBRERO, 332 SCRA 190

Mendoza, J.

There are two (2) kinds of involuntary or coerced confessions under Art. III,
Section 12 of the Constitution. These are:

1. confession which are the product of third degree methods such as torture, force, violence,
threat, intimidation; and

2. those which are given without the benefit of Miranda Warnings.

There is no compliance of the constitutional requirement of competent and


independent counsel to assist an accused during custodial investigation when the
accused was assisted by the Station Commander of the WPD, Atty. De los Reyes,
while being investigated by other policemen of the same police station because
the interest of the police is naturally adverse to the accused. In fact, the SC in the
case of PEOPLE VS. JANUARIO, 267 SCRA 608 held that a lawyer applying for
a position in the NBI could not validly assist an accused being investigated then
by the NBI.

1-b. P. vs. Aspili, November 21, 1990


1-c. People vs. Judge Ayson, 175 SCRA 216 (Confession made to the officials
of Philippine Airlines during an investigation is admissible in evidence
despite the fact that he was not informed of his rights during custodial
investigations since said officials are not bound by the requirements of
Section 12, Art. III of the Constitution)
1-d. P. vs. Pinlac, 165 SCRA 675
1-e. People vs. Loveria, 187 SCRA 47
1-f. Gamboa vs. Judge Cruz, 162 SCRA 675
2. P. vs. Galit, 135 SCRA 465
3. P vs. Alegre, 94 SCRA 109
4. Draculan vs. Donato, 85 SCRA 266
5. P. vs. Borromeo, June 29,l983
6. P vs. Camalog, GR No. 77116, January 31, 1989
(Including the duty of Police Officers in connection with said right)
7. P vs. Cui, Jr., 162 SCRA 220

3-a. How about if the accused gives an spontaneous statement before he could be
advised of his right to remain silent?

Read:

Aballe vs. People, 183 SCRA 196

3-b. When shall the constitutional rights of the accused as mentioned above
demandable? During police line-up?

Read:

1. P vs. Usman Hassan, 157 SCRA 261


2. Gamboa vs. Judge Cruz, 162 SCRA 642
3. 3. DE LA TORRE VS. CA, 294 SCRA 196
4. PEOPLE VS. HATTON

The right to counsel;

PEOPLE VS. JEREZ, 285 SCRA 393

A lawyer provided by the investigators to the accused during the custodial


investigation is deemed engaged by the accused where he never raised any
objection against the formers appointment during the course of the investigation
AND THE ACCUSED THEREAFTER SUBSCRIBES TO THE VERACITY OF
HIS STATEMENT BEFORE THE SWEARING OFFICER.

(NOTE: In the case of PEOPLE VS. JUANERIO, February 7, 1997, the


SC held that a lawyer who was at the NBI Office applying for a position therein
and who was appointed as counsel for a suspect being then investigated by the
NBI could not be considered as the competent and independent counsel referred
to in the Constitution especially so that later on, said lawyer was appointed by the
NBI as one of its agents.)

The next case is very important. It diminishes the right to counsel during
custodial investigation and makes the work of the investigator easier to make the
confession of a suspect admissible as evidence. It is obviously a reversal of the
People vs. Juanerio ruling.

RIGHT TO A COMPETENT AND INDEPENDENT COUNSEL OF HIS OWN CHOICE.


This case is different form the previous doctrines.

PEOPLE OF THE PHILIPPINES VS. DOMINGO REYES, ET AL., G.R.


No. 178300, March 17, 2009

CHICO-NAZARIO, J.:
On 11 August 1999, an Information193[4] was filed before the RTC charging
appellants with the special complex crime of kidnapping for ransom with
homicide. The accusatory portion of the information reads:

The undersigned State Prosecutor of the Department of Justice hereby accuses


Domingo Reyes y Paje, Alvin Arnaldo y Avena and Joselito Flores y Victorio of
the crime of kidnapping for ransom with homicide defined and penalized under
Article 267 of the Revised Penal Code, as amended, committed as follows:

That on or about 11:00 p.m. on July 16, 1999, at Sitio Lambakin, barangay Sto.
Cristo, San Jose del Monte, Bulacan, Philippines and within the jurisdiction of

this Honorable Court, the above-named accused conspiring, confederating and


mutually helping one another and grouping themselves together with Juanito
Pataray y Cayaban, Federico Pataray y Cabayan and Rommel Libarnes y Acejo,
who are still at large, did then and there willfully, unlawfully and feloniously, by
means of force and intimidation and with use of firearms, carry away and deprive
Robert Yao, Yao San, Chua Ong Ping Sim, Raymond Yao, Ronald Matthew
Yao, Lennie Yao, Charlene Yao, Jona Abagatnan ang Josephine Ortea against
their will and consent on board their Mazda MVP van for the purpose of extorting
money in the amount of Five Million Pesos (P5,000,000.00), that during the
detention of Chua Ong Ping Sim and Raymong Yao, said accused with intent to
kill, willfully and unlawfully strangled Chua Ong Ping Sim and Raymond Yao
to death to the damage and prejudice of their heirs in such amount as may be
awarded to them by this Honorable Court.

The prosecution presented as witnesses Jona Abagatnan (Abagatnan),


Robert Yao (Robert), Yao San, Police Officer 3 (PO3) Alex Alberto, PO3 Roberto
Jabien, Atty. Florimond Rous (Atty. Rous) and Atty. Carlo Uminga (Atty.
Uminga). Their testimonies, taken together, attest to the following:

The Yao family is composed of Yao San (father), Chua Ong Ping Sim
(mother), Robert and Raymond (children), Lenny (daughter-in-law, wife of
Robert), Matthew and Charlene (grandchildren), and Jona Abagatnan and
Josephine Ortea (housemaids). The Yao family owns and operates a poultry farm
in Barangay Santo Cristo, San Jose del Monte, Bulacan.

On 16 July 1999, at about 11:00 p.m., the Yao family, on board a Mazda
MVP van, arrived at the their poultry farm in Barangay Sto. Cristo, San Jose del
Monte, Bulacan. Yao San alighted from the van to open the gate of the farm. At
this juncture, appellant Reyes and a certain Juanito Pataray (Pataray) approached,
poked their guns at Yao San, and dragged him inside the van. Appellant Reyes and
Pataray also boarded the van. Thereupon, appellants Arnaldo and Flores, with two
male companions, all armed with guns, arrived and immediately boarded the van.
Appellant Flores took the drivers seat and drove the van. Appellants Reyes and
Arnaldo and their cohorts then blindfolded each member of the Yao family inside
the van with packaging tape.194[6]

After about 30 minutes of traveling on the road, the van stopped. Per order
of appellants and their cohorts, Chua Ong Ping Sim, Robert, Raymond and Jona

Abagatnan (Abagatnan) stepped out of the van with appellants Reyes and
Arnaldo, Pataray and one of their male companions.195[7] Appellant Flores, with
the other male companion, drove the van with the remaining members of the Yao
family inside the vehicle.196[8]

Later, the van stopped again. Appellant Flores and his male companion
told Yao San to produce the amount of five million pesos (P5,000,000.00) as
ransom in exchange for the release of Chua Ong Ping Sim, Robert, Raymond and
Abagatnan. Thereafter, appellant Flores and his male companion left the van and
fled; while Yao San, Lenny, Matthew, Charlene and Josephine remained inside the
van. Upon sensing that the kidnappers had already left, Yao San drove the van
towards the poultry farm and sought the help of relatives.197[9]

Meanwhile, Chua Ong Ping Sim, Robert, Raymond and Abagatnan were
taken on foot by appellants Reyes and Arnaldo, Pataray and one male companion
to a safe-house situated in the mountainous part of San Jose Del Monte, Bulacan
where they spent the whole night.198[10]

On the morning of the following day, at around 4:00 a.m., appellants and
their cohorts tried to contact Yao San regarding the ransom demanded, but the
latter could not be reached. Thus, appellants instructed Abagatnan to look for Yao
San in the poultry farm. Appellants Reyes and Arnaldo and one male companion
escorted Abagatnan in proceeding to the poultry farm. Upon arriving therein,
Abagatnan searched for Yao San, but the latter could not be found. Appellants
Reyes and Arnaldo told Abagatnan to remind Yao San about the ransom
demanded. Thereafter, appellants Reyes and Arnaldo and their male companion
left Abagatnan in the poultry farm and went back to the safe-house.199[11]

In the safe-house, appellants told Robert that they would release him so he
could help Abagatnan in locating Yao San. Robert and appellants left the safehouse, and after 30 minutes of trekking, appellants abandoned Robert. Robert then
ran towards the poultry farm. Upon arriving at the poultry farm, Robert found Yao
San and informed him about the ransom demanded by the appellants. Robert also
told Yao San that Chua Ong Ping Sim and Raymond were still held by appellants
and their cohorts.200[12]

On 18 July 1999, appellants called Yao San through a cellular phone and
demanded the ransom of P5 million for Chua Ong Ping Sim and Raymond. Yao
San acceded to appellants demand. Appellants allowed Yao San to talk with Chua
Ong Ping Sim.201[13]

On the morning of 19 July 1999, appellants again called Yao San via a
cellular phone and threatened to kill Chua Ong Ping Sim and Raymond because
of newspaper and radio reports regarding the incident. Yao San clarified to
appellants that he did not report the incident to the police and also pleaded with
them to spare the life of Chua Ong Ping Sim and Raymond. Appellants then
instructed Yao San to appear and bring with him the ransom of P5 million at 3:00
p.m. in the Usan dumpsite, Litex Road, Fairview, Quezon City. Yao San arrived at
the designated place of the pay-off at 4:00 p.m., but none of the appellants or their
cohorts showed up. Yao San waited for appellants call, but none came. Thus, Yao
San left.202[14]

On 23 July 1999, the corpses of Chua Ong Ping Sim and Raymond were
found at the La Mesa Dam, Novaliches, Quezon City.203[15] Both died of asphyxia
by strangulation.204[16]

On 26 July 1999, appellant Arnaldo surrendered to the Presidential AntiOrganized Crime Task Force (PAOCTF) at Camp Crame, Quezon City.
Thereupon, appellant Arnaldo, with the assistance of Atty. Uminga, executed a
written extra-judicial confession narrating his participation in the incident.
Appellant Arnaldo identified appellants Reyes and Flores, Pataray and a certain
Tata and Akey as his co-participants in the incident. Appellant Arnaldo also
described the physical features of his cohorts and revealed their whereabouts.205[17]

Subsequently, appellant Reyes was arrested in Sto. Cristo, San Jose del
Monte, Bulacan. Thereafter, appellants Arnaldo and Reyes were identified in a
police line-up by Yao San, Robert and Abagatnan as their kidnappers.206[18]

On 10 August 1999, agents of the PAOCTF arrested appellant Flores in


Balayan, Batangas. Afterwards, appellant Flores, with the assistance of Atty.
Rous, executed a written extra-judicial confession detailing his participation in the
incident. Appellant Flores identified appellants Reyes and Arnaldo, Pataray and a

certain Tata and Akey as his co-participants in the incident. Appellant Flores was
subsequently identified in a police line-up by Yao San, Robert and Abagatnan as
one of their kidnappers.207[19]

For its part, the defense presented the testimonies of appellants, Marina
Reyes, Irene Flores Celestino, Wilfredo Celestino, Jr., Rachel C. Ramos, and
Isidro Arnaldo. Appellants denied any liability and interposed alibis and the
defense of frame-up. Their testimonies, as corroborated by their witnesses, are as
follows:

Appellant Arnaldo testified that he was an asset of the PAOCTF. He


narrated that on 25 July 1999, while he was at the tricycle terminal of Brgy. Sto.
Cristo, San Jose del Monte, Bulacan, a police officer named Liwanag of the
PAOCTF approached and invited him to go to Camp Crame to shed light on a
kidnapping case allegedly committed by a certain Brgy. Captain Ramos and by
members of the Aguirre and Bautista families. He accepted the invitation.
Subsequently, he proceeded to Camp Crame and met therein Colonel Cesar
Mancao III (Colonel Mancao) of the PAOCTF. Colonel Mancao told him that the
PAOCTF would arrest Brgy. Capt. Ramos and certain persons named Gerry
Bautista and Dadie Bautista. Colonel Mancao instructed him to identify said
persons as responsible for the kidnapping of the Yao family. He refused to do so
because he feared Brgy. Capt. Ramos. The day after, Colonel Mancao called
appellant Arnaldo to his office. Upon arriving thereat, the latter saw Yao San. Yao
San promised him that if their kidnappers would be apprehended through his
cooperation, he would give him P500,000.00. He accepted Yao Sans offer under
the condition that he would identify a different set of suspects. Later, Colonel
Mancao gave him P30,000.00.208[31]

Subsequently, he pointed to appellants Reyes and Flores as his cohorts in


kidnapping the Yao family. He implicated appellants Reyes and Flores to get even
with them, since the two had previously mauled him after he sold their fighting
cocks and failed to give them the proceeds of the sale.209[32]

He denied having met with Atty. Uminga. He was not assisted by the latter
when he was forced by the PAOCTF to make a written extra-judicial confession
on the kidnapping of the Yao family. Further, he claimed that while he was under
the custody of PAOCTF, a certain Major Paulino utilized him as a drug pusher.
Upon failing to remit the proceeds of the drug sale, he was beaten up by PAOCTF

agents and thereafter included as accused with appellants Reyes and Flores for the
kidnapping of the Yao family.210[33]

On the other hand, appellant Reyes testified that he slept in his house with
his family from 6:00 p.m. of 16 July 1999 until the morning of the next day; that
on the early morning of 26 July 1999, five policemen barged into his house and
arrested him; that the policemen told him that he was a suspect in the kidnapping
of the Yao family; that he was mauled by the policemen outside his house; that the
policemen forcibly brought him to Camp Crame, where he was subsequently
tortured; that he knew the Yao family because he worked as a carpenter in the
familys poultry farm at Brgy. Sto. Cristo, San Jose del Monte, Bulacan; that he
had no involvement in the kidnapping of the family; and that appellant Arnaldo
implicated him in the kidnapping of the family because appellant Arnaldo held a
grudge against him.211[34]

For his part, appellant Flores testified that he stayed in his sisters house at
Antipolo City from 12 July 1999 up to 30 July 1999; that he went to her house on
12 July 1999 because it was the birthday of her child; that he worked as a
construction worker during his stay in his sisters house; that he was arrested in
Batangas and thereafter brought to Camp Crame, where he was beaten up by
policemen for refusing to admit involvement in the kidnapping of the Yao family;
that after three days of beating, he was forced to sign a document which he later
found out to be a written extra-judicial confession; that he never met nor did he
know Atty. Rous; that he knew the Yao family because he lived near the familys
poultry farm, and he used to work therein as a welder; that he had no participation
in the kidnapping of the family; and that appellant Arnaldo implicated him in the
kidnapping of the family because he and appellant Reyes had mauled appellant
Arnaldo several years ago.212[35]

The defense proffered documentary and object evidence to buttress their


foregoing claims, to wit: (1) prayer booklet of appellant Arnaldo (Exhibit 1 for
appellant Arnaldo);213[36] (2) calling card of Colonel Mancao (Exhibit 2 for
appellant Arnaldo);214[37] and (3) pictures allegedly showing appellant Flores
working as a carpenter in Antipolo City (Exhibits 1 & 2 for appellant Flores).215[38]

After trial, the RTC rendered a Decision dated 26 February 2002


convicting appellants of the special complex crime of kidnapping for ransom with
homicide and sentencing each of them to suffer the supreme penalty of death.

Appellants were also ordered to pay jointly and severally the Yao family
P150,000.00 as civil indemnity, P500,000.00 as moral damages and the costs of
the proceedings. The dispositive portion of the RTC Decision reads:

WHEREFORE, finding herein three (3) accused DOMINGO REYES y


PAJE, ALVIN ARNALDO y AVENA, and JOSELITO FLORES y VICTORIO
guilty as principals beyond reasonable doubt of the crime of KIDNAPPING FOR
RANSOM WITH (DOUBLE) HOMICIDE as charged, they are hereby sentenced
each to suffer the supreme penalty of DEATH as mandated by law, to jointly and
severally indemnify the heirs of deceased Chua Ong Ping Sim and Raymond Yao
in the amount of One Hundred Fifty Thousand Pesos (P150,000.00), and all the
private offended parties or victims, including the heirs of the deceased, in the
amount of Five Hundred Thousand Pesos (P500,000.00) as moral damages,
subject to the corresponding filing fee as a first lien, and to pay the costs of the
proceedings.216[39]

By reason of the death penalty imposed on each of the appellants, the


instant case was elevated to us for automatic review. However, pursuant to our
ruling in People v. Mateo,217[40] we remanded the instant case to the Court of
Appeals for proper disposition.

On 14 August 2006, the Court of Appeals promulgated its Decision


affirming with modifications the RTC Decision. The appellate court reduced the
penalty imposed by the RTC on each of the appellants from death penalty to
reclusion perpetua without the possibility of parole. It also decreased the amount
of civil indemnity from P150,000.00 to P100,000.00. Further, it directed
appellants to pay jointly and severally the Yao family P100,000.00 as exemplary
damages. The fallo of the Court of Appeals decision states:

WHEREFORE, premises considered, the Decision of the Regional Trial


Court of Malolos, Bulacan, Branch 12, dated February 26, 2002, in Criminal Case
No. 1611-M-99 convicting accused-appellants of the crime of Kidnapping For
Ransom with (Double) Homicide, is hereby AFFIRMED with MODIFICATIONS
in that:

1) accused-appellants are instead sentenced to suffer the penalty of reclusion


perpetua;

2) the award of civil indemnity ex delicto is hereby reduced to P100,000; and

3) accused-appellants are further ordered to pay private complainants the amount


of P100,000.00 as exemplary damages.218[41]

Appellants filed a motion for reconsideration of the Court of Appeals


Decision but this was denied. Hence, appellants filed their Notice of Appeal on 25
August 2006.

One of the main issues raised is:

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO


THE EXTRA-JUDICIAL CONFESSIONS OF APPELLANT ARNALDO
AND APPELLANT FLORES;

Appellant Reyes claims that his alleged participation in the kidnapping of


the Yao family was based solely on the written extra-judicial confessions of
appellants Arnaldo and Flores. He maintains, however, that said extra-judicial
confessions are inadmissible in evidence, because they were obtained in violation
of his co-appellants constitutional right to have an independent counsel of their
own choice during custodial investigation. Appellant Reyes alleges that the agents
of the PAOCTF did not ask his co-appellants during the custodial investigation
whether they had a lawyer of their own choice, and whether they could afford to
hire a lawyer; that the agents of the PAOCTF suggested the availability of Atty.
Uminga and Atty. Rous to his co-appellants; and that Atty. Uminga and Atty. Rous
were associates of the PAOCTF. Appellant Reyes also asseverates that the extrajudicial confessions of appellants Arnaldo and Flores cannot be utilized against
him.

Appellant Flores argues that his written extra-judicial confession is


inadmissible in evidence, because it was obtained in violation of his constitutional
right to have an independent counsel of his own choice during custodial
investigation. He insists that his written extra-judicial confession was elicited
through force, torture and without the assistance of a lawyer. He avers that he was
not assisted by any lawyer from the time he was arrested until he was coerced to
sign the purported confession; that he was forced to sign it because he could not
anymore endure the beatings he suffered at the hands of the PAOCTF agents; and
that he never met or knew Atty. Rous who, according to the PAOCTF, had
assisted him during the custodial investigation.

Appellant Arnaldo contends that his written extra-judicial confession


should be excluded as evidence, as it was procured in violation of his
constitutional right to have an independent counsel of his own choice during
custodial investigation. He claims that he was not given freedom to choose his
counsel; that the agents of the PAOCTF did not ask him during the custodial
investigation whether he had a lawyer of his own choice, and whether he could
afford to hire a lawyer; and that the agents of the PAOCTF suggested the
availability of Atty. Uminga to him.

Thus, we have held that an extra-judicial confession is admissible in


evidence if the following requisites have been satisfied: (1) it must be voluntary;
(2) it must be made with the assistance of competent and independent
counsel; (3) it must be express; and (4) it must be in writing.219[67]

The right of an accused to be informed of the right to remain silent and to


counsel contemplates the transmission of meaningful information rather than
just the ceremonial and perfunctory recitation of an abstract constitutional
principle.220[69] Such right contemplates effective communication which results in
the subject understanding what is conveyed.221[70]

The right to counsel is a fundamental right and is intended to preclude the


slightest coercion as would lead the accused to admit something false.222[71] The
right to counsel attaches upon the start of the investigation, i.e., when the
investigating officer starts to ask questions to elicit information and/or
confessions or admissions from the accused.223[72] The lawyer called to be present
during such investigation should be, as far as reasonably possible, the choice of
the accused. If the lawyer is one furnished in behalf of accused, he should be

competent and independent; that is, he must be willing to fully safeguard the
constitutional rights of the accused.224[73] A competent and independent counsel is
logically required to be present and able to advice and assist his client from the
time the latter answers the first question asked by the investigator until the signing
of the confession. Moreover, the lawyer should ascertain that the confession was
made voluntarily, and that the person under investigation fully understood the
nature and the consequence of his extra-judicial confession vis-a-vis his
constitutional rights. 225[74]

However, the foregoing rule is not intended to deter to the accused from
confessing guilt if he voluntarily and intelligently so desires, but to protect him
from admitting what he is being coerced to admit although untrue. To be an
effective counsel, a lawyer need not challenge all the questions being propounded
to his client. The presence of a lawyer is not intended to stop an accused from
saying anything which might incriminate him; but, rather, it was adopted in
our Constitution to preclude the slightest coercion on the accused to admit
something false. The counsel should never prevent an accused from freely
and voluntarily telling the truth.226[75]

We have gone over the records and found that the PAOCTF investigators
have duly apprised appellants Arnaldo and Flores of their constitutional rights to
remain silent and to have competent and independent counsel of their own choice
during their respective custodial investigations.

The Pasubali227[76] of appellants Arnaldo and Floress written extra-judicial


confessions clearly shows that before they made their respective confessions, the
PAOCTF investigators had informed them that the interrogation about to be
conducted on them referred to the kidnapping of the Yao family. Thereafter, the
PAOCTF agents explained to them that they had a constitutional right to remain
silent, and that anything they would say may be used against them in a court of
law. They were also told that they were entitled to a counsel of their own choice,
and that they would be provided with one if they had none. When asked if they
had a lawyer of their own, appellant Arnaldo replied that he would be assisted by
Atty. Uminga, while appellant Flores agreed to be represented by Atty. Rous.
Thereafter, when asked if they understood their said rights, they replied in the
affirmative. The appraisal of their constitutional rights was done in the presence
of their respective lawyers and in the Tagalog dialect, the language spoken and
understood by them. Appellants Arnaldo and Flores and their respective counsels,
Atty. Uminga and Atty. Rous, also signed and thumbmarked the extra-judicial
confessions. Atty. Uminga and Atty. Rous attested to the veracity of the afore-

cited facts in their respective court testimonies.228[77] Indeed, the appraisal of


appellants constitutional rights was not merely perfunctory, because it appeared
certain that appellants had understood and, in fact, exercised their fundamental
rights after being informed thereof.

Records reflect that appellants Arnaldo and Reyes were likewise accorded
their right to competent and independent counsel during their respective custodial
investigations.

As regards appellant Arnaldo, Atty. Uminga testified that prior to the


questioning of appellant Arnaldo about the incident, Atty. Uminga told the
PAOCTF investigators and agents to give him and appellant Arnaldo space and
privacy, so that they could freely converse. After the PAOCTF investigators and
agents left them, he and appellant Arnaldo went to a cubicle where only the two of
them were present. He interviewed appellant Arnaldo in the Tagalog language
regarding the latters personal circumstances and asked him why he was in the
PAOCTF office and why he wanted a lawyer. Appellant Arnaldo replied that he
wanted to make a confession about his participation in the kidnapping of the Yao
family. Thereupon, he asked appellant Arnaldo if the latter would accept his
assistance as his lawyer for purposes of his confession. Appellant Arnaldo agreed.
He warned appellant Arnaldo that he might be sentenced to death if he confessed
involvement in the incident. Appellant Arnaldo answered that he would face the
consequences because he was bothered by his conscience. He inquired from
appellant Arnaldo if he was harmed or intimidated into giving self-incriminating
statements to the PAOCTF investigators. Appellant Arnaldo answered in the
negative. He requested appellant Arnaldo to remove his shirt for him to check if
there were torture marks on his body, but he found none. He also observed that
appellant Arnaldos appearance and movements were normal. His conference with
appellant Arnaldo lasted for 15 minutes or more. Thereafter, he allowed the
PAOCTF investigators to question appellant Arnaldo.229[78]

Further, Atty. Uminga sat beside appellant Arnaldo during the inquiry and
listened to the latters entire confession. After the taking of appellant Arnaldos
confession, Atty. Uminga requested the PAOCTF investigators to give him a copy
of appellant Arnaldos confession. Upon obtaining such copy, he read it entirely
and thereafter gave it to appellant Arnaldo. He instructed appellant Arnaldo to
read and comprehend the same carefully. He told appellant Arnaldo to ask him for
clarification and comment if he did not agree or understand any part of his written
confession. Appellant Arnaldo read his entire written confession and handed it to
him. Atty. Uminga asked him if he had objections to it. Appellant Arnaldo replied

in the negative. He then reminded appellant Arnaldo that the latter could still
change his mind, and that he was not being forced to sign. Appellant Arnaldo
manifested that he would sign his written confession. Later, he and appellant
Arnaldo affixed their signatures to the written confession.230[79]

With respect to appellant Flores, Atty. Rous declared that before the
PAOCTF investigators began questioning appellant, Atty. Rous interviewed him
in Tagalog inside a room, where only the two of them were present. He asked
appellant Flores about his personal circumstances. Appellant Flores replied that he
was a suspect in the kidnapping of the Yao family, and he wanted to give a
confession regarding his involvement in the said incident. He asked appellant
Flores whether he would accept his assistance as his lawyer. Appellant Flores
affirmed that he would. He asked appellant Flores why he wanted to give such
confession. Appellant Flores answered that he was bothered by his conscience.
Atty. Rous warned appellant Flores that his confession would be used against him
in a court of law, and that the death penalty might be imposed on him. Appellant
Flores told him that he wanted to tell the truth and unload the burden on his mind.
He requested appellant Flores to lift his shirt for the former to verify if there were
torture marks or bruises on his body, but found none. Again, he cautioned
appellant Flores about the serious consequences of his confession, but the latter
maintained that he wanted to tell the truth. Thereafter, he permitted the PAOCTF
investigators to question appellant Flores.231[80]

Additionally, Atty. Rous stayed with appellant Flores while the latter was
giving statements to the PAOCTF investigators. After the taking of appellant
Flores statements, he instructed appellant Flores to read and check his written
confession. Appellant Flores read the same and made some minor corrections. He
also read appellant Flores written confession. Afterwards, he and appellant Flores
signed the latters written confession.232[81]

It is true that it was the PAOCTF which contacted and suggested the
availability of Atty. Uminga and Atty. Rous to appellants Arnaldo and Flores,
respectively. Nonetheless, this does not automatically imply that their right to
counsel was violated. What the Constitution requires is the presence of competent
and independent counsel, one who will effectively undertake his clients defense
without any intervening conflict of interest.233[82] There was no conflict of interest
with regard to the legal assistance rendered by Atty. Uminga and Atty. Rous. Both
counsels had no interest adverse to appellants Arnaldo and Flores. Although Atty.
Uminga testified that he was a former National Bureau of Investigation (NBI)
agent, he, nevertheless, clarified that he had been separated therefrom since

1994234[83] when he went into private practice. Atty. Uminga declared under oath
that he was a private practitioner when he assisted appellant Arnaldo during the
custodial investigation.235[84] It appears that Atty. Uminga was called by the
PAOCTF to assist appellant Arnaldo, because Atty. Umingas telephone number
was listed on the directory of his former NBI officemates detailed at the PAOCTF.
Atty. Rous, on the other hand, was a member of the Free Legal Aid Committee of
the Integrated Bar of the Philippines, Quezon City at the time he rendered legal
assistance to appellant Flores.236[85] Part of Atty. Rous duty as member of the said
group was to render legal assistance to the indigents including suspects under
custodial investigation. There was no evidence showing that Atty. Rous had
organizational or personal links to the PAOCTF. In fact, he proceeded to the
PAOCTF office to assist appellant Flores, because he happened to be the lawyer
manning the office when the PAOCTF called.237[86] In People v. Fabro,238[87] we
stated:

The Constitution further requires that the counsel be independent; thus, he


cannot be a special counsel, public or private prosecutor, counsel of the police, or
a municipal attorney whose interest is admittedly adverse to that of the accused.
Atty. Jungco does not fall under any of said enumeration. Nor is there any
evidence that he had any interest adverse to that of the accused. The indelible fact
is that he was president of the Zambales Chapter of the Integrated Bar of the
Philippines, and not a lackey of the lawmen.

Further, as earlier stated, under Section 12(1), Article III of the 1987
Constitution, an accused is entitled to have competent and independent counsel
preferably of his own choice. The phrase preferably of his own choice does not
convey the message that the choice of a lawyer by a person under investigation is
exclusive as to preclude other equally competent and independent attorneys from
handling the defense. Otherwise, the tempo of custodial investigation would be
solely in the hands of the accused who can impede, nay, obstruct, the progress of
the interrogation by simply selecting a lawyer who, for one reason or another, is
not available to protect his interest.239[88] While the choice of a lawyer in cases
where the person under custodial interrogation cannot afford the services of
counsel or where the preferred lawyer is not available is naturally lodged in
the police investigators, the suspect has the final choice, as he may reject the
counsel chosen for him and ask for another one. A lawyer provided by the
investigators is deemed engaged by the accused when he does not raise any
objection to the counsels appointment during the course of the investigation, and
the accused thereafter subscribes to the veracity of the statement before the
swearing officer.240[89] Appellants Arnaldo and Flores did not object to the

appointment of Atty. Uminga and Atty. Rous as their lawyers, respectively, during
their custodial investigation. Prior to their questioning, appellants Arnaldo and
Flores conferred with Atty. Uminga and Atty. Rous. Appellant Arnaldo manifested
that he would be assisted by Atty. Uminga, while appellant Flores agreed to be
counseled by Atty. Rous. Atty. Uminga and Atty. Rous countersigned the written
extra-judicial confessions of appellants Arnaldo and Flores, respectively. Hence,
appellants Arnaldo and Flores are deemed to have engaged the services of Atty.
Uminga and Atty. Rous, respectively.

Since the prosecution has sufficiently established that the respective extrajudicial confessions of appellant Arnaldo and appellant Flores were obtained in
accordance with the constitutional guarantees, these confessions are admissible.
They are evidence of a high order because of the strong presumption that no
person of normal mind would deliberately and knowingly confess to a crime,
unless prompted by truth and conscience.241[90] Consequently, the burden of
proving that undue pressure or duress was used to procure the confessions rests on
appellants Arnaldo and Flores.242[91]

In the case at bar, appellants Arnaldo and Flores failed to discharge their
burden of proving that they were forced or coerced to make their respective
confessions. Other than their self-serving statements that they were maltreated by
the PAOCTF officers/agents, they did not present any plausible proof to
substantiate their claims. They did not submit any medical report showing that
their bodies were subjected to violence or torture. Neither did they file complaints
against the persons who had allegedly beaten or forced them to execute their
respective confessions despite several opportunities to do so. Appellants Arnaldo
and Flores averred that they informed their family members/relatives of the
alleged maltreatment, but the latter did not report such allegations to proper
authorities. On the contrary, appellants Arnaldo and Flores declared in their
respective confessions that they were not forced or harmed in giving their sworn
statements, and that they were not promised or given any award in consideration
of the same. Records also bear out that they were physically examined by doctors
before they made their confessions.243[92] Their physical examination reports
certify that no external signs of physical injury or any form of trauma were noted
during their examination.244[93] In People v. Pia,245[94] we held that the following
factors indicate voluntariness of an extra-judicial confession: (1) where the
accused failed to present credible evidence of compulsion or duress or
violence on their persons; (2) where they failed to complain to the officers
who administered the oaths; (3) where they did not institute any criminal or
administrative action against their alleged intimidators for maltreatment; (4)
where there appeared to be no marks of violence on their bodies; and (5)

where they did not have themselves examined by a reputable physician to


buttress their claim.

It should also be noted that the extra-judicial confessions of appellants


Arnaldo and Flores are replete with details on the manner in which the kidnapping
was committed, thereby ruling out the possibility that these were involuntarily
made. Their extra-judicial confessions clearly state how appellants and their
cohorts planned the kidnapping as well as the sequence of events before, during
and after its occurrence. The voluntariness of a confession may be inferred from
its language if, upon its face, the confession exhibits no suspicious circumstances
tending to cast doubt upon its integrity, it being replete with details which could
only be supplied by the accused.246[95]

With respect to appellant Reyess claim that the extra-judicial confessions


of appellants Arnaldo and Flores cannot be used in evidence against him, we have
ruled that although an extra-judicial confession is admissible only against the
confessant, jurisprudence makes it admissible as corroborative evidence of other
facts that tend to establish the guilt of his co-accused.247[96] In People v.
Alvarez,248[97] we ruled that where the confession is used as circumstantial
evidence to show the probability of participation by the co-conspirator, that
confession is receivable as evidence against a co-accused. In People v.
Encipido249[98] we elucidated as follows:

It is also to be noted that APPELLANTS extrajudicial confessions were


independently made without collusion, are identical with each other in their
material respects and confirmatory of the other. They are, therefore, also
admissible as circumstantial evidence against their co-accused implicated therein
to show the probability of the latters actual participation in the commission of the
crime. They are also admissible as corroborative evidence against the others, it
being clear from other facts and circumstances presented that persons other than
the declarants themselves participated in the commission of the crime charged and
proved. They are what is commonly known as interlocking confession and
constitute an exception to the general rule that extrajudicial
confessions/admissions are admissible in evidence only against the declarants
thereof.

Appellants Arnaldo and Flores stated in their respective confessions that


appellant Reyes participated in their kidnapping of the Yao family. These

statements are, therefore, admissible as corroborative and circumstantial evidence


to prove appellant Reyes guilt.

RIGHT TO COUNSEL

The person who assisted him in court during his arraignment and pre-trial is not a
lawyer.

PEDRO CONSULTA VS. PEOPLE, G.R. No. 17942, February 12, 2009

CARPIO MORALES, J.:

On the matter of accused-appellants claim of having been denied due process, an


examination of the records shows that while accused-appellant was represented by
Atty. Jocelyn P. Reyes, who seems not a lawyer, during the early stages of trial,
the latter withdrew her appearance with the conformity of the former as early as
July 28, 2000 and subsequently, approved by the RTC in its Order dated August 4,
2000. Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao
from the Public Defenders (Attorneys) Office of Makati City. Since the accusedappellant was