G.R. No. L-31195 June 5, 1973
de Leon, Company personnel
PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR
TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON,
ASENCION PACIENTE, BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO
MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.
MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred
to as PBMEO) is a legitimate labor union composed of the employees of the
respondent Philippine Blooming Mills Co., Inc., and petitioners Nicanor Tolentino,
Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio
Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and members of the
petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration
at Malacaang on March 4, 1969, in protest against alleged abuses of the Pasig
police, to be participated in by the workers in the first shift (from 6 A.M. to 2 P.M.) as
well as those in the regular second and third shifts (from 7 A.M. to 4 P.M. and from 8
A.M. to 5 P.M., respectively); and that they informed the respondent Company of their
proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge Joaquin M.
Salvador of the respondent Court reproduced the following stipulation of facts of the
parties parties
3. That on March 2, 1969 complainant company learned of the
projected mass demonstration at Malacaang in protest against alleged
abuses of the Pasig Police Department to be participated by the first shift
(6:00 AM-2:00 PM) workers as well as those working in the regular shifts
(7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the morning of March 4,
1969;
4. That a meeting was called by the Company on March 3, 1969 at
about 11:00 A.M. at the Company's canteen, and those present were: for the
Company: (1) Mr. Arthur L. Ang (2) Atty. S. de Leon, Jr., (3) and all
department and section heads. For the PBMEO (1) Florencio Padrigano, (2)
Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio
Vacuna and (6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said
projected mass demonstration at Malacaang on March 4, 1969. PBMEO
thru Benjamin Pagcu who acted as spokesman of the union panel, confirmed
the planned demonstration and stated that the demonstration or rally cannot
be cancelled because it has already been agreed upon in the meeting. Pagcu
explained further that the demonstration has nothing to do with the Company
because the union has no quarrel or dispute with Management;
6. That Management, thru Atty. C.S.
manager, informed PBMEO that the demonstration is an inalienable right of
the union guaranteed by the Constitution but emphasized, however, that any
demonstration for that matter should not unduly prejudice the normal
operation of the Company. For which reason, the Company, thru Atty. C.S. de
Leon warned the PBMEO representatives that workers who belong to the first
and regular shifts, who without previous leave of absence approved by the
Company, particularly , the officers present who are the organizers of the
demonstration, who shall fail to report for work the following morning (March
4, 1969) shall be dismissed, because such failure is a violation of the existing
CBA and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was
convoked Company represented by Atty. C.S. de Leon, Jr. The Union panel
was composed of: Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and
Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company
reiterated and appealed to the PBMEO representatives that while all workers
may join the Malacaang demonstration, the workers for the first and regular
shift of March 4, 1969 should be excused from joining the demonstration and
should report for work; and thus utilize the workers in the 2nd and 3rd shifts in
order not to violate the provisions of the CBA, particularly Article XXIV: NO
LOCKOUT NO STRIKE'. All those who will not follow this warning of the
Company shall be dismiss; De Leon reiterated the Company's warning that
the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to
change their plans inasmuch as the Malacaang demonstration will be held
the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9:50 A.M., March 4, 1969, the
contents of which are as follows: 'REITERATING REQUEST EXCUSE DAY
SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969.' (Pars.
3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400 proceeded with the
demonstration despite the pleas of the respondent Company that the first shift workers
should not be required to participate in the demonstration and that the workers in the
second and third shifts should be utilized for the demonstration from 6 A.M. to 2 P.M.
on March 4, 1969, respondent Company prior notice of the mass demonstration on
March 4, 1969, with the respondent Court, a charge against petitioners and other
employees who composed the first shift, charging them with a "violation of Section
4(a)-6 in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No.
875, and of the CBA providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20,
rec.). The charge was accompanied by the joint affidavit of Arthur L. Ang and Cesareo
de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding complaint was
filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T. Tirona and Acting
Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the
existing CBA because they gave the respondent Company prior notice of the mass
demonstration on March 4, 1969; that the said mass demonstration was a valid
exercise of their constitutional freedom of speech against the alleged abuses of some
1
Pasig policemen; and that their mass demonstration was not a declaration of strike
because it was not directed against the respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the parties,
Judge Joaquin M. Salvador, in an order dated September 15, 1969, found herein
petitioner PBMEO guilty of bargaining in bad faith and herein petitioners Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for
perpetrating the said unfair labor practice and were, as a consequence, considered to
have lost their status as employees of the respondent Company (Annex "F", pp. 42-56,
rec.)
Herein petitioners claim that they received on September 23, 1969, the aforesaid order
(p. 11, rec.); and that they filed on September 29, 1969, because September 28, 1969
fell on Sunday (p. 59, rec.), a motion for reconsideration of said order dated
September 15, 1969, on the ground that it is contrary to law and the evidence, as well
as asked for ten (10) days within which to file their arguments pursuant to Sections 15,
16 and 17 of the Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.),
respondent Company averred that herein petitioners received on September 22, 1969,
the order dated September 17 (should be September 15), 1969; that under Section 15
of the amended Rules of the Court of Industrial Relations, herein petitioners had five
(5) days from September 22, 1969 or until September 27, 1969, within which to file
their motion for reconsideration; and that because their motion for reconsideration was
two (2) days late, it should be accordingly dismissed, invoking Bien vs. Castillo, 1
which held among others, that a motion for extension of the five-day period for the
filing of a motion for reconsideration should be filed before the said five-day period
elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written arguments
dated October 11, 1969, in support of their motion for reconsideration (Annex "I", pp.
65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed the motion
for reconsideration of herein petitioners for being pro forma as it was filed beyond the
reglementary period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein
petitioners received on October 28, 196 (pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which was released on
October 24, 1969 and addressed to the counsels of the parties (pp. 75-76, rec.),
appear the requirements of Sections 15, 16 and 17, as amended, of the Rules of the
Court of Industrial Relations, that a motion for reconsideration shall be filed within five
(5) days from receipt of its decision or order and that an appeal from the decision,
resolution or order of the C.I.R., sitting en banc, shall be perfected within ten (10) days
from receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a petition for
relief from the order dated October 9, 1969, on the ground that their failure to file their
motion for reconsideration on time was due to excusable negligence and honest
mistake committed by the president of the petitioner Union and of the office clerk of
their counsel, attaching thereto the affidavits of the said president and clerk (Annexes
"K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the order dated
October 9, 1969, herein petitioners filed on November 3, 1969, with the Supreme
Court, a notice of appeal (Annex "L", pp. 88-89, rec.).
I
There is need of briefly restating basic concepts and principles which underlie the
issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and worth
of the human personality is the central core as well as the cardinal article of faith of our
civilization. The inviolable character of man as an individual must be "protected to the
largest possible extent in his thoughts and in his beliefs as the citadel of his person." 2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and
security "against the assaults of opportunism, the expediency of the passing hour, the
erosion of small encroachments, and the scorn and derision of those who have no
patience with general principles." 3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is
to withdraw "certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials, and to establish them as legal
principles to be applied by the courts. One's rights to life, liberty and property, to free
speech, or free press, freedom of worship and assembly, and other fundamental rights
may not be submitted to a vote; they depend on the outcome of no elections." 4 Laski
proclaimed that "the happiness of the individual, not the well-being of the State, was
the criterion by which its behaviour was to be judged. His interests, not its power, set
the limits to the authority it was entitled to exercise." 5
(3) The freedoms of expression and of assembly as well as the right to petition
are included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the
ideas we cherish; or as Socrates insinuated, not only to protect the minority who want
to talk, but also to benefit the majority who refuse to listen. 6 And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the liberties of one
are not safe unless the liberties of all are protected. 7
(4) The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to man's enjoyment of his life, to his happiness
and to his full and complete fulfillment. Thru these freedoms the citizens can
participate not merely in the periodic establishment of the government through their
suffrage but also in the administration of public affairs as well as in the discipline of
abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as
for the imposition of the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of human
rights over property rights is recognized. 8 Because these freedoms are "delicate and
vulnerable, as well as supremely precious in our society" and the "threat of sanctions
may deter their exercise almost as potently as the actual application of sanctions,"
they "need breathing space to survive," permitting government regulation only "with
narrow specificity." 9
Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill
2
of Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, of the influential and
powerful, and of oligarchs political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and
political institutions; 10 and such priority "gives these liberties the sanctity and the
sanction not permitting dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the fact that a
mere reasonable or rational relation between the means employed by the law and its
object or purpose that the law is neither arbitrary nor discriminatory nor oppressive
would suffice to validate a law which restricts or impairs property rights. 12 On the
other hand, a constitutional or valid infringement of human rights requires a more
stringent criterion, namely existence of a grave and immediate danger of a substantive
evil which the State has the right to prevent. So it has been stressed in the main
opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer
of the opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice Barredo in
Gonzales vs. Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times
Co. vs. Sullivan, 14 believes that the freedoms of speech and of the press as well as of
peaceful assembly and of petition for redress of grievances are absolute when directed
against public officials or "when exercised in relation to our right to choose the men
and women by whom we shall be governed," 15 even as Mr. Justice Castro relies on
the balancing-of-interests test. 16 Chief Justice Vinson is partial to the improbable
danger rule formulated by Chief Judge Learned Hand, viz. whether the gravity of
the evil, discounted by its improbability, justifies such invasion of free expression as is
necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass
demonstration was not a declaration of strike, concluded that by their "concerted act
and the occurrence temporary stoppage of work," herein petitioners are guilty
bargaining in bad faith and hence violated the collective bargaining agreement with
private respondent Philippine Blooming Mills Co., inc.. Set against and tested by
foregoing principles governing a democratic society, such conclusion cannot be
sustained. The demonstration held petitioners on March 4, 1969 before Malacaang
was against alleged abuses of some Pasig policemen, not against their employer,
herein private respondent firm, said demonstrate was purely and completely an
exercise of their freedom expression in general and of their right of assembly and
petition for redress of grievances in particular before appropriate governmental
agency, the Chief Executive, again the police officers of the municipality of Pasig. They
exercise their civil and political rights for their mutual aid protection from what they
believe were police excesses. As matter of fact, it was the duty of herein private
respondent firm to protect herein petitioner Union and its members fro the harassment
of local police officers. It was to the interest herein private respondent firm to rally to
the defense of, and take up the cudgels for, its employees, so that they can report to
work free from harassment, vexation or peril and as consequence perform more
efficiently their respective tasks enhance its productivity as well as profits. Herein
respondent employer did not even offer to intercede for its employees with the local
police. Was it securing peace for itself at the expenses of its workers? Was it also
intimidated by the local police or did it encourage the local police to terrorize or vex its
workers? Its failure to defend its own employees all the more weakened the position of
its laborers the alleged oppressive police who might have been all the more
emboldened thereby subject its lowly employees to further indignities.
In seeking sanctuary behind their freedom of expression well as their right of assembly
and of petition against alleged persecution of local officialdom, the employees and
laborers of herein private respondent firm were fighting for their very survival, utilizing
only the weapons afforded them by the Constitution the untrammelled enjoyment of
their basic human rights. The pretension of their employer that it would suffer loss or
damage by reason of the absence of its employees from 6 o'clock in the morning to 2
o'clock in the afternoon, is a plea for the preservation merely of their property rights.
Such apprehended loss or damage would not spell the difference between the life and
death of the firm or its owners or its management. The employees' pathetic situation
was a stark reality abused, harassment and persecuted as they believed they were
by the peace officers of the municipality. As above intimated, the condition in which the
employees found themselves vis-a-vis the local police of Pasig, was a matter that
vitally affected their right to individual existence as well as that of their families.
Material loss can be repaired or adequately compensated. The debasement of the
human being broken in morale and brutalized in spirit-can never be fully evaluated in
monetary terms. The wounds fester and the scars remain to humiliate him to his dying
day, even as he cries in anguish for retribution, denial of which is like rubbing salt on
bruised tissues.
As heretofore stated, the primacy of human rights freedom of expression, of
peaceful assembly and of petition for redress of grievances over property rights has
been sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon at
once the shield and armor of the dignity and worth of the human personality, the all-
consuming ideal of our enlightened civilization becomes Our duty, if freedom and
social justice have any meaning at all for him who toils so that capital can produce
economic goods that can generate happiness for all. To regard the demonstration
against police officers, not against the employer, as evidence of bad faith in collective
bargaining and hence a violation of the collective bargaining agreement and a cause
for the dismissal from employment of the demonstrating employees, stretches unduly
the compass of the collective bargaining agreement, is "a potent means of inhibiting
speech" and therefore inflicts a moral as well as mortal wound on the constitutional
guarantees of free expression, of peaceful assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of the employees,
according to the respondent Court Industrial Relations, in effect imposes on the
workers the "duty ... to observe regular working hours." The strain construction of the
Court of Industrial Relations that a stipulated working shifts deny the workers the right
to stage mass demonstration against police abuses during working hours, constitutes
a virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on such a
slender ground.
The mass demonstration staged by the employees on March 4, 1969 could not have
been legally enjoined by any court, such an injunction would be trenching upon the
freedom expression of the workers, even if it legally appears to be illegal picketing or
strike. 20 The respondent Court of Industrial Relations in the case at bar concedes that
the mass demonstration was not a declaration of a strike "as the same not rooted in
3
any industrial dispute although there is concerted act and the occurrence of a
temporary stoppage work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to participate
in the demonstration and that they suggested to the Union that only the first and
regular shift from 6 A.M. to 2 P.M. should report for work in order that loss or damage
to the firm will be averted. This stand failed appreciate the sine qua non of an effective
demonstration especially by a labor union, namely the complete unity of the Union
members as well as their total presence at the demonstration site in order to generate
the maximum sympathy for the validity of their cause but also immediately action on
the part of the corresponding government agencies with jurisdiction over the issues
they raised against the local police. Circulation is one of the aspects of freedom of
expression. 21 If demonstrators are reduced by one-third, then by that much the
circulation of the issues raised by the demonstration is diminished. The more the
participants, the more persons can be apprised of the purpose of the rally. Moreover,
the absence of one-third of their members will be regarded as a substantial indication
of disunity in their ranks which will enervate their position and abet continued alleged
police persecution. At any rate, the Union notified the company two days in advance of
their projected demonstration and the company could have made arrangements to
counteract or prevent whatever losses it might sustain by reason of the absence of its
workers for one day, especially in this case when the Union requested it to excuse only
the day-shift employees who will join the demonstration on March 4, 1969 which
request the Union reiterated in their telegram received by the company at 9:50 in the
morning of March 4, 1969, the day of the mass demonstration (pp. 42-43, rec.). There
was a lack of human understanding or compassion on the part of the firm in rejecting
the request of the Union for excuse from work for the day shifts in order to carry out its
mass demonstration. And to regard as a ground for dismissal the mass demonstration
held against the Pasig police, not against the company, is gross vindictiveness on the
part of the employer, which is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because the refusal
on the part of the respondent firm to permit all its employees and workers to join the
mass demonstration against alleged police abuses and the subsequent separation of
the eight (8) petitioners from the service constituted an unconstitutional restraint on the
freedom of expression, freedom of assembly and freedom petition for redress of
grievances, the respondent firm committed an unfair labor practice defined in Section
4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise known as the
Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the
right "to engage in concert activities for ... mutual aid or protection"; while Section
4(a-1) regards as an unfair labor practice for an employer interfere with, restrain or
coerce employees in the exercise their rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration staged by the workers
of the respondent firm on March 4, 1969, was for their mutual aid and protection
against alleged police abuses, denial of which was interference with or restraint on the
right of the employees to engage in such common action to better shield themselves
against such alleged police indignities. The insistence on the part of the respondent
firm that the workers for the morning and regular shift should not participate in the
mass demonstration, under pain of dismissal, was as heretofore stated, "a potent
means of inhibiting speech." 22
Such a concerted action for their mutual help and protection deserves at least equal
protection as the concerted action of employees in giving publicity to a letter complaint
charging bank president with immorality, nepotism, favoritism an discrimination in the
appointment and promotion of ban employees. 23 We further ruled in the Republic
Savings Bank case, supra, that for the employees to come within the protective mantle
of Section 3 in relation to Section 4(a-1) on Republic Act No. 875, "it is not necessary
that union activity be involved or that collective bargaining be contemplated," as long
as the concerted activity is for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order of
respondent Court dated September 15, 1969, the company, "while expressly
acknowledging, that the demonstration is an inalienable right of the Union guaranteed
by the Constitution," nonetheless emphasized that "any demonstration for that matter
should not unduly prejudice the normal operation of the company" and "warned the
PBMEO representatives that workers who belong to the first and regular shifts, who
without previous leave of absence approved by the Company, particularly the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike
(;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the employees
from joining the mass demonstration. However, the issues that the employees raised
against the local police, were more important to them because they had the courage to
proceed with the demonstration, despite such threat of dismissal. The most that could
happen to them was to lose a day's wage by reason of their absence from work on the
day of the demonstration. One day's pay means much to a laborer, more especially if
he has a family to support. Yet, they were willing to forego their one-day salary hoping
that their demonstration would bring about the desired relief from police abuses. But
management was adamant in refusing to recognize the superior legitimacy of their
right of free speech, free assembly and the right to petition for redress.
Because the respondent company ostensibly did not find it necessary to demand from
the workers proof of the truth of the alleged abuses inflicted on them by the local
police, it thereby concedes that the evidence of such abuses should properly be
submitted to the corresponding authorities having jurisdiction over their complaint and
to whom such complaint may be referred by the President of the Philippines for proper
investigation and action with a view to disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations found that the
demonstration "paralyzed to a large extent the operations of the complainant
company," the respondent Court of Industrial Relations did not make any finding as to
the fact of loss actually sustained by the firm. This significant circumstance can only
mean that the firm did not sustain any loss or damage. It did not present evidence as
to whether it lost expected profits for failure to comply with purchase orders on that
day; or that penalties were exacted from it by customers whose orders could not be
filled that day of the demonstration; or that purchase orders were cancelled by the
customers by reason of its failure to deliver the materials ordered; or that its own
equipment or materials or products were damaged due to absence of its workers on
March 4, 1969. On the contrary, the company saved a sizable amount in the form of
wages for its hundreds of workers, cost of fuel, water and electric consumption that
day. Such savings could have amply compensated for unrealized profits or damages it
might have sustained by reason of the absence of its workers for only one day.
4
 IV
Apart from violating the constitutional guarantees of free speech and assembly as well
as the right to petition for redress of grievances of the employees, the dismissal of the
eight (8) leaders of the workers for proceeding with the demonstration and
consequently being absent from work, constitutes a denial of social justice likewise
assured by the fundamental law to these lowly employees. Section 5 of Article II of the
Constitution imposes upon the State "the promotion of social justice to insure the well-
being and economic security of all of the people," which guarantee is emphasized by
the other directive in Section 6 of Article XIV of the Constitution that "the State shall
afford protection to labor ...". Respondent Court of Industrial Relations as an agency of
the State is under obligation at all times to give meaning and substance to these
constitutional guarantees in favor of the working man; for otherwise these
constitutional safeguards would be merely a lot of "meaningless constitutional patter."
Under the Industrial Peace Act, the Court of Industrial Relations is enjoined to effect
the policy of the law "to eliminate the causes of industrial unrest by encouraging and
protecting the exercise by employees of their right to self-organization for the purpose
of collective bargaining and for the promotion of their moral, social and economic well-
being." It is most unfortunate in the case at bar that respondent Court of Industrial
Relations, the very governmental agency designed therefor, failed to implement this
policy and failed to keep faith with its avowed mission its raison d'etre as
ordained and directed by the Constitution.
V constitutional rights? The answer should be obvious in the light of the aforecited cases.
It has been likewise established that a violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void and confers no
rights. Relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even long after the
finality of the judgment. Thus, habeas corpus is the remedy to obtain the release of an
individual, who is convicted by final judgment through a forced confession, which
violated his constitutional right against self-incrimination; 25 or who is denied the right
to present evidence in his defense as a deprivation of his liberty without due process of
law, 26 even after the accused has already served sentence for twenty-two years.
Both the respondents Court of Industrial Relations and private firm trenched upon
these constitutional immunities of petitioners. Both failed to accord preference to such
rights and aggravated the inhumanity to which the aggrieved workers claimed they had
been subjected by the municipal police. Having violated these basic human rights of
the laborers, the Court of Industrial Relations ousted itself of jurisdiction and the
questioned orders it issued in the instant case are a nullity. Recognition and protection
of such freedoms are imperative on all public offices including the courts 28 as well as
private citizens and corporations, the exercise and enjoyment of which must not be
nullified by mere procedural rule promulgated by the Court Industrial Relations
exercising a purely delegate legislative power, when even a law enacted by Congress
must yield to the untrammelled enjoyment of these human rights. There is no time limit
to the exercise of the freedoms. The right to enjoy them is not exhausted by the
delivery of one speech, the printing of one article or the staging of one demonstration.
It is a continuing immunity to be invoked and exercised when exigent and expedient
whenever there are errors to be rectified, abuses to be denounced, inhumanities to be
condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by rule
on procedure prescribing the period for appeal. The battle then would be reduced to a
race for time. And in such a contest between an employer and its laborer, the latter
eventually loses because he cannot employ the best an dedicated counsel who can
defend his interest with the required diligence and zeal, bereft as he is of the financial
resources with which to pay for competent legal services. 28-a
VI
The Court of Industrial Relations rule prescribes that motion for reconsideration of its
order or writ should filed within five (5) days from notice thereof and that the arguments
in support of said motion shall be filed within ten (10) days from the date of filing of
such motion for reconsideration (Sec. 16). As above intimated, these rules of
procedure were promulgated by the Court of Industrial Relations pursuant to a
legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven (7) days
from notice on September 22, 1969 of the order dated September 15, 1969 or two (2)
days late. Petitioners claim that they could have filed it on September 28, 1969, but it
was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2) days late
defeat the rights of the petitioning employees? Or more directly and concretely, does
the inadvertent omission to comply with a mere Court of Industrial Relations
procedural rule governing the period for filing a motion for reconsideration or appeal in
labor cases, promulgated pursuant to a legislative delegation, prevail over
To accord supremacy to the foregoing rules of the Court of Industrial Relations over
basic human rights sheltered by the Constitution, is not only incompatible with the
basic tenet of constitutional government that the Constitution is superior to any statute
or subordinate rules and regulations, but also does violence to natural reason and
logic. The dominance and superiority of the constitutional right over the aforesaid
Court of Industrial Relations procedural rule of necessity should be affirmed. Such a
Court of Industrial Relations rule as applied in this case does not implement or
reinforce or strengthen the constitutional rights affected,' but instead constrict the same
to the point of nullifying the enjoyment thereof by the petitioning employees. Said Court
of Industrial Relations rule, promulgated as it was pursuant to a mere legislative
delegation, is unreasonable and therefore is beyond the authority granted by the
Constitution and the law. A period of five (5) days within which to file a motion for
reconsideration is too short, especially for the aggrieved workers, who usually do not
have the ready funds to meet the necessary expenses therefor. In case of the Court of
Appeals and the Supreme Court, a period of fifteen (15) days has been fixed for the
filing of the motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52;
Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for
reconsideration could have been only one day if September 28, 1969 was not a
Sunday. This fact accentuates the unreasonableness of the Court of Industrial are
concerned.
It should be stressed here that the motion for reconsideration dated September 27,
1969, is based on the ground that the order sought to be reconsidered "is not in
accordance with law, evidence and facts adduced during the hearing," and likewise
prays for an extension of ten (10) days within which to file arguments pursuant to
Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex "G", pp.
57-60, rec.); although the arguments were actually filed by the herein petitioners on
5
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for
the filing of such supporting arguments counted from the filing of the motion for
reconsideration. Herein petitioners received only on October 28, 1969 the resolution
dated October 9, 1969 dismissing the motion for reconsideration for being pro forma
since it was filed beyond the reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is filed out of
time, or where the arguments in suppf such motion are filed beyond the 10 day
reglementary period provided for by the Court of Industrial Relations rules, the order or
decision subject of 29-a reconsideration becomes final and unappealable. But in all
these cases, the constitutional rights of free expression, free assembly and petition
were not involved.
It is a procedural rule that generally all causes of action and defenses presently
available must be specifically raised in the complaint or answer; so that any cause of
action or defense not raised in such pleadings, is deemed waived. However, a
constitutional issue can be raised any time, even for the first time on appeal, if it
appears that the determination of the constitutional issue is necessary to a decision of
the case, the very lis mota of the case without the resolution of which no final and
complete determination of the dispute can be made. 30 It is thus seen that a
procedural rule of Congress or of the Supreme Court gives way to a constitutional
right. In the instant case, the procedural rule of the Court of Industrial Relations, a
creature of Congress, must likewise yield to the constitutional rights invoked by herein
petitioners even before the institution of the unfair labor practice charged against them
and in their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no less by the
organic law, is a most compelling reason to deny application of a Court of Industrial
Relations rule which impinges on such human rights. 30-a
It is an accepted principle that the Supreme Court has the inherent power to "suspend
its own rules or to except a particular case from its operation, whenever the purposes
of justice require." 30-b Mr. Justice Barredo in his concurring opinion in Estrada vs.
Sto. Domingo. 30-c reiterated this principle and added that
Under this authority, this Court is enabled to cove with all situations without
concerning itself about procedural niceties that do not square with the need to
do justice, in any case, without further loss of time, provided that the right of
the parties to a full day in court is not substantially impaired. Thus, this Court
may treat an appeal as a certiorari and vice-versa. In other words, when all
the material facts are spread in the records before Us, and all the parties
have been duly heard, it matters little that the error of the court a quo is of
judgment or of jurisdiction. We can then and there render the appropriate
judgment. Is within the contemplation of this doctrine that as it is perfectly
legal and within the power of this Court to strike down in an appeal acts
without or in excess of jurisdiction or committed with grave abuse of
discretion, it cannot be beyond the admit of its authority, in appropriate cases,
to reverse in a certain proceed in any error of judgment of a court a quo which
cannot be exactly categorized as a flaw of jurisdiction. If there can be any
doubt, which I do not entertain, on whether or not the errors this Court has
found in the decision of the Court of Appeals are short of being jurisdiction
nullities or excesses, this Court would still be on firm legal grounds should it
choose to reverse said decision here and now even if such errors can be
considered as mere mistakes of judgment or only as faults in the exercise of
jurisdiction, so as to avoid the unnecessary return of this case to the lower
court for the sole purpose of pursuing the ordinary course of an appeal.
(Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations rule in this
particular case at bar would an unreasoning adherence to "Procedural niceties" which
denies justice to the herein laborers, whose basic human freedoms, including the right
to survive, must be according supremacy over the property rights of their employer firm
which has been given a full hearing on this case, especially when, as in the case at
bar, no actual material damage has be demonstrated as having been inflicted on its
property rights.
If We can disregard our own rules when justice requires it, obedience to the
Constitution renders more imperative the suspension of a Court of Industrial Relations
rule that clash with the human rights sanctioned and shielded with resolution concern
by the specific guarantees outlined in the organic law. It should be stressed that the
application in the instant case Section 15 of the Court of Industrial Relations rules
relied upon by herein respondent firm is unreasonable and therefore such application
becomes unconstitutional as it subverts the human rights of petitioning labor union and
workers in the light of the peculiar facts and circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial Relations
rules with reference to the case at is also authorized by Section 20 of Commonwealth
Act No. 103, the C.I.R. charter, which enjoins the Court of Industrial Relations to "act
according to justice and equity and substantial merits of the case, without regard to
technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-stated by Mr.
Justice Barredo, speaking for the Court, in the 1970 case of Kapisanan, etc. vs.
Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the petitioners in the motion
for new trial is not "newly discovered," as such term is understood in the rules
of procedure for the ordinary courts, We hold that such criterion is not binding
upon the Court of Industrial Relations. Under Section 20 of Commonwealth
Act No. 103, 'The Court of Industrial Relations shall adopt its, rules or
procedure and shall have such other powers as generally pertain to a court of
justice: Provided, however, That in the hearing, investigation and
determination of any question or controversy and in exercising any duties and
power under this Act, the Court shall act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal forms
and shall not be bound by any technical rules of legal evidence but may
inform its mind in such manner as it may deem just and equitable.' By this
provision the industrial court is disengaged from the rigidity of the
technicalities applicable to ordinary courts. Said court is not even restricted to
the specific relief demanded by the parties but may issue such orders as may
be deemed necessary or expedient for the purpose of settling the dispute or
dispelling any doubts that may give rise to future disputes. (Ang Tibay v.
C.I.R., G.R. No. 46496, Feb. 17, 1940; Manila Trading & Supply Co. v. Phil.
Labor, 71 Phil. 124.) For these reasons, We believe that this provision is
6
 ample enough to have enabled the respondent court to consider whether or
not its previous ruling that petitioners constitute a minority was founded on
fact, without regard to the technical meaning of newly discovered evidence. ...
(Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578).
(emphasis supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the
instant case is to rule in effect that the poor workers, who can ill-afford an alert
competent lawyer, can no longer seek the sanctuary of human freedoms secured to
them by the fundamental law, simply because their counsel erroneously believing
that he received a copy of the decision on September 23, 1969, instead of September
22, 1969 - filed his motion for reconsideration September 29, 1969, which practically is
only one day late considering that September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedure technicalities when they ceased to be
instruments of justice, for the attainment of which such rules have been devised.
Summarizing the jurisprudence on this score, Mr. Justice Fernando, speaking for a
unanimous Court in Palma vs. Oreta, 30-f Stated:
As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil.
315 [1910]. The Villamor decision was cited with approval in Register of
Deeds v. Phil. Nat. Bank, 84 Phil. 600 [1949]; Potenciano v. Court of Appeals,
104 Phil. 156 [1958] and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.),
decided as far back as 1910, "technicality. when it deserts its proper-office as
an aid to justice and becomes its great hindrance and chief enemy, deserves
scant consideration from courts." (Ibid., p, 322.) To that norm, this Court has
remained committed. The late Justice Recto in Blanco v. Bernabe, (63 Phil.
124 [1936]) was of a similar mind. For him the interpretation of procedural
rule should never "sacrifice the ends justice." While "procedural laws are no
other than technicalities" view them in their entirety, 'they were adopted not as
ends themselves for the compliance with which courts have organized and
function, but as means conducive to the realization the administration of the
law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice of substantial rights
of a litigant in altar of sophisticated technicalities with impairment of the
sacred principles of justice." (Potenciano v. Court of Appeals, 104 Phil. 156,
161 [1958]). As succinctly put by Justice Makalintal, they "should give way to
the realities of the situation." (Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5
SCRA 1016, 1019). In the latest decision in point promulgated in 1968, (Udan
v. Amon, (1968, 23 SCRA citing McEntee v. Manotok, L-14968, Oct. 27, 1961,
3 SCRA 272.) Justice Zaldivar was partial to an earlier formulation of Justice
Labrador that rules of procedure "are not to be applied in a very rigid,
technical sense"; but are intended "to help secure substantial justice." (Ibid.,
p. 843) ... 30-g
Even if the questioned Court of Industrial Relations orders and rule were to be given
effect, the dismissal or termination of the employment of the petitioning eight (8)
leaders of the Union is harsh for a one-day absence from work. The respondent Court
itself recognized the severity of such a sanction when it did not include the dismissal of
the other 393 employees who are members of the same Union and who participated in
the demonstration against the Pasig police. As a matter of fact, upon the intercession
of the Secretary of Labor, the Union members who are not officers, were not dismissed
and only the Union itself and its thirteen (13) officers were specifically named as
respondents in the unfair labor practice charge filed against them by the firm (pp.
16-20, respondent's Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for
respondent firm insinuates that not all the 400 or so employee participated in the
demonstration, for which reason only the Union and its thirteen (13) officers were
specifically named in the unfair labor practice charge (p. 20, respondent's brief). If that
were so, then many, if not all, of the morning and regular shifts reported for work on
March 4, 1969 and that, as a consequence, the firm continued in operation that day
and did not sustain any damage.
The appropriate penalty if it deserves any penalty at all should have been simply
to charge said one-day absence against their vacation or sick leave. But to dismiss the
eight (8) leaders of the petitioner Union is a most cruel penalty, since as aforestated
the Union leaders depend on their wages for their daily sustenance as well as that of
their respective families aside from the fact that it is a lethal blow to unionism, while at
the same time strengthening the oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from those who
consciously seek to destroy our system of Government, but from men of
goodwill good men who allow their proper concerns to blind them to the
fact that what they propose to accomplish involves an impairment of liberty.
... The Motives of these men are often commendable. What we must
remember, however, is that preservation of liberties does not depend on
motives. A suppression of liberty has the same effect whether the suppress or
be a reformer or an outlaw. The only protection against misguided zeal is a
constant alertness of the infractions of the guarantees of liberty contained in
our Constitution. Each surrender of liberty to the demands of the moment
makes easier another, larger surrender. The battle over the Bill of Rights is a
never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties of all are
protected.
... But even if we should sense no danger to our own liberties, even if we feel
secure because we belong to a group that is important and respected, we
must recognize that our Bill of Rights is a code of fair play for the less
fortunate that we in all honor and good conscience must be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but a complete
lack of sympathetic understanding of the plight of its laborers who claim that they are
being subjected to indignities by the local police, It was more expedient for the firm to
conserve its income or profits than to assist its employees in their fight for their
freedoms and security against alleged petty tyrannies of local police officers. This is
sheer opportunism. Such opportunism and expediency resorted to by the respondent
company assaulted the immunities and welfare of its employees. It was pure and
implement selfishness, if not greed.
7
Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where (1) setting aside as null and void the orders of the respondent Court of Industrial
the petitioner Bank dismissed eight (8) employees for having written and published "a Relations dated September 15 and October 9, 1969; and
patently libelous letter ... to the Bank president demanding his resignation on the (2) directing the re instatement of the herein eight (8) petitioners, with full back
grounds of immorality, nepotism in the appointment and favoritism as well as pay from the date of their separation from the service until re instated, minus one day's
discrimination in the promotion of bank employees." Therein, thru Mr. Justice Castro, pay and whatever earnings they might have realized from other sources during their
We ruled: separation from the service.
It will avail the Bank none to gloat over this admission of the respondents. With costs against private respondent Philippine Blooming Company, Inc.
Assuming that the latter acted in their individual capacities when they wrote
the letter-charge they were nonetheless protected for they were engaged in
concerted activity, in the exercise of their right of self organization that
includes concerted activity for mutual aid and protection, (Section 3 of the
Industrial Peace Act ...) This is the view of some members of this Court. For,
as has been aptly stated, the joining in protests or demands, even by a small
group of employees, if in furtherance of their interests as such, is a concerted
activity protected by the Industrial Peace Act. It is not necessary that union
activity be involved or that collective bargaining be contemplated. (Annot., 6
A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed the respondents to
air their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to discipline for what it calls
the respondents' libel in giving undue publicity to their letter-charge. To be
sure, the right of self-organization of employees is not unlimited (Republic
Aviation Corp. vs. NLRB 324 U.S. 793 [1945]), as the right of the employer to
discharge for cause (Philippine Education Co. v. Union of Phil. Educ.
Employees, L-13773, April 29, 1960) is undenied. The Industrial Peace Act
does not touch the normal exercise of the right of the employer to select his
employees or to discharge them. It is directed solely against the abuse of that
right by interfering with the countervailing right of self organization (Phelps
Dodge Corp. v. NLRB 313 U.S. 177 [1941])...

xxx xxx xxx

In the final sum and substance, this Court is in unanimity that the Bank's
conduct, identified as an interference with the employees' right of self-
organization or as a retaliatory action, and/or as a refusal to bargain
collectively, constituted an unfair labor practice within the meaning and
intendment of section 4(a) of the Industrial Peace Act. (Emphasis supplied.)
33
If free expression was accorded recognition and protection to fortify labor unionism in
the Republic Savings case, supra, where the complaint assailed the morality and
integrity of the bank president no less, such recognition and protection for free speech,
free assembly and right to petition are rendered all the more justifiable and more
imperative in the case at bar, where the mass demonstration was not against the
company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
8
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL
BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE
LUKBAN, in his capacity as Acting Director, National Bureau of Investigation;
SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL
VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO
ROAN, Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of
Manila; JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon
City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City,
respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David
for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P.
de Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason
and Solicitor C. Padua for respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin1
hereinafter referred to as Respondents-Prosecutors several judges2 hereinafter
referred to as Respondents-Judges issued, on different dates,3 a total of 42 search
warrants against petitioners herein4 and/or the corporations of which they were
officers,5 directed to the any peace officer, to search the persons above-named and/or
the premises of their offices, warehouses and/or residences, and to seize and take
possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts,
ledgers, journals, portfolios, credit journals, typewriters, and other documents
and/or papers showing all business transactions including disbursements
receipts, balance sheets and profit and loss statements and Bobbins
(cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the
offense," or "used or intended to be used as the means of committing the offense,"
which is described in the applications adverted to above as "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal
Code."
Alleging that the aforementioned search warrants are null and void, as contravening
the Constitution and the Rules of Court because, inter alia: (1) they do not describe
with particularity the documents, books and things to be seized; (2) cash money, not
mentioned in the warrants, were actually seized; (3) the warrants were issued to fish
evidence against the aforementioned petitioners in deportation cases filed against
them; (4) the searches and seizures were made in an illegal manner; and (5) the
documents, papers and cash money seized were not delivered to the courts that
issued the warrants, to be disposed of in accordance with law on March 20, 1962,
said petitioners filed with the Supreme Court this original action for certiorari,
prohibition, mandamus and injunction, and prayed that, pending final disposition of the
present case, a writ of preliminary injunction be issued restraining Respondents-
Prosecutors, their agents and /or representatives from using the effects seized as
aforementioned or any copies thereof, in the deportation cases already adverted to,
and that, in due course, thereafter, decision be rendered quashing the contested
search warrants and declaring the same null and void, and commanding the
respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers,
things and cash moneys seized or confiscated under the search warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search
warrants are valid and have been issued in accordance with law; (2) that the defects of
said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the
effects seized are admissible in evidence against herein petitioners, regardless of the
alleged illegality of the aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the
petition. However, by resolution dated June 29, 1962, the writ was partially lifted or
dissolved, insofar as the papers, documents and things seized from the offices of the
corporations above mentioned are concerned; but, the injunction was maintained as
regards the papers, documents and things found and seized in the residences of
petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of the
warrants in question may be split into two (2) major groups, namely: (a) those found
and seized in the offices of the aforementioned corporations, and (b) those found and
seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to
assail the legality of the contested warrants and of the seizures made in pursuance
thereof, for the simple reason that said corporations have their respective
personalities, separate and distinct from the personality of herein petitioners,
regardless of the amount of shares of stock or of the interest of each of them in said
corporations, and whatever the offices they hold therein may be.8 Indeed, it is well
settled that the legality of a seizure can be contested only by the party whose rights
have been impaired thereby,9 and that the objection to an unlawful search and seizure
is purely personal and cannot be availed of by third parties. 10 Consequently,
petitioners herein may not validly object to the use in evidence against them of the
documents, papers and things seized from the offices and premises of the
corporations adverted to above, since the right to object to the admission of said
papers in evidence belongs exclusively to the corporations, to whom the seized effects
belong, and may not be invoked by the corporate officers in proceedings against them
in their individual capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging
to the corporation did not relate to nor did it affect the personal defendants. If
these papers were unlawfully seized and thereby the constitutional rights of or
any one were invaded, they were the rights of the corporation and not the
rights of the other defendants. Next, it is clear that a question of the
lawfulness of a seizure can be raised only by one whose rights have been
invaded. Certainly, such a seizure, if unlawful, could not affect the
constitutional rights of defendants whose property had not been seized or the
9
 privacy of whose homes had not been disturbed; nor could they claim for
themselves the benefits of the Fourth Amendment, when its violation, if any,
was with reference to the rights of another. Remus vs. United States
(C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the
admissibility of the evidence based on an alleged unlawful search and seizure
does not extend to the personal defendants but embraces only the
corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs.
United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of
petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of
preliminary injunction previously issued by this Court, 12 thereby, in effect, restraining
herein Respondents-Prosecutors from using them in evidence against petitioners
herein.
In connection with said documents, papers and things, two (2) important questions
need be settled, namely: (1) whether the search warrants in question, and the
searches and seizures made under the authority thereof, are valid or not, and (2) if the
answer to the preceding question is in the negative, whether said documents, papers
and things may be used in evidence against petitioners herein.1wph1.t searched for and seized, to wit:
Petitioners maintain that the aforementioned search warrants are in the nature of
general warrants and that accordingly, the seizures effected upon the authority there of
are null and void. In this connection, the Constitution 13 provides:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures shall not be violated, and
no warrants shall issue but upon probable cause, to be determined by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.
Two points must be stressed in connection with this constitutional mandate, namely:
(1) that no warrant shall issue but upon probable cause, to be determined by the judge
in the manner set forth in said provision; and (2) that the warrant shall particularly
describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed,
the same were issued upon applications stating that the natural and juridical person
therein named had committed a "violation of Central Ban Laws, Tariff and Customs
Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specific
offense had been alleged in said applications. The averments thereof with respect to
the offense committed were abstract. As a consequence, it was impossible for the
judges who issued the warrants to have found the existence of probable cause, for the
same presupposes the introduction of competent proof that the party against whom it
is sought has performed particular acts, or committed specific omissions, violating a
given provision of our criminal laws. As a matter of fact, the applications involved in
this case do not allege any specific acts performed by herein petitioners. It would be
the legal heresy, of the highest order, to convict anybody of a "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code,"
as alleged in the aforementioned applications without reference to any
determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one
of the most fundamental rights guaranteed in our Constitution, for it would place the
sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers. This is precisely the evil
sought to be remedied by the constitutional provision above quoted to outlaw the
so-called general warrants. It is not difficult to imagine what would happen, in times of
keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed
search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the
former Rules of Court 14 by providing in its counterpart, under the Revised Rules of
Court 15 that "a search warrant shall not issue but upon probable cause in connection
with one specific offense." Not satisfied with this qualification, the Court added thereto
a paragraph, directing that "no search warrant shall issue for more than one specific
offense."
The grave violation of the Constitution made in the application for the contested search
warrants was compounded by the description therein made of the effects to be
Books of accounts, financial records, vouchers, journals, correspondence,
receipts, ledgers, portfolios, credit journals, typewriters, and other documents
and/or papers showing all business transactions including disbursement
receipts, balance sheets and related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights that the things to be seized
be particularly described as well as tending to defeat its major objective: the
elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors
maintain that, even if the searches and seizures under consideration were
unconstitutional, the documents, papers and things thus seized are admissible in
evidence against petitioners herein. Upon mature deliberation, however, we are
unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the
criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against unreasonable
searches and seizures is protected by means other than the exclusion of evidence
unlawfully obtained, 17 such as the common-law action for damages against the
searching officer, against the party who procured the issuance of the search warrant
and against those assisting in the execution of an illegal search, their criminal
punishment, resistance, without liability to an unlawful seizure, and such other legal
remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and
eventually adopted the exclusionary rule, realizing that this is the only practical means
of enforcing the constitutional injunction against unreasonable searches and seizures.
In the language of Judge Learned Hand:
10
 As we understand it, the reason for the exclusion of evidence competent as
such, which has been unlawfully acquired, is that exclusion is the only
practical way of enforcing the constitutional privilege. In earlier times the
action of trespass against the offending official may have been protection
enough; but that is true no longer. Only in case the prosecution which itself
controls the seizing officials, knows that it cannot profit by their wrong will that
wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the 4th
Amendment, declaring his rights to be secure against such searches and
seizures, is of no value, and, so far as those thus placed are concerned,
might as well be stricken from the Constitution. The efforts of the courts and
their officials to bring the guilty to punishment, praiseworthy as they are, are
not to be aided by the sacrifice of those great principles established by years
of endeavor and suffering which have resulted in their embodiment in the
fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on
the same Federal Court. 20 After reviewing previous decisions thereon, said Court
held, in Mapp vs. Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of
the right of privacy free from unreasonable state intrusion, and after its dozen
years on our books, are led by it to close the only courtroom door remaining
open to evidence secured by official lawlessness in flagrant abuse of that
basic right, reserved to all persons as a specific guarantee against that very
same unlawful conduct. We hold that all evidence obtained by searches and
seizures in violation of the Constitution is, by that same authority,
inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared
enforceable against the States through the Due Process Clause of the
Fourteenth, it is enforceable against them by the same sanction of exclusion
as it used against the Federal Government. Were it otherwise, then just as
without the Weeks rule the assurance against unreasonable federal searches
and seizures would be "a form of words," valueless and underserving of
mention in a perpetual charter of inestimable human liberties, so too, without
that rule the freedom from state invasions of privacy would be so ephemeral
and so neatly severed from its conceptual nexus with the freedom from all
brutish means of coercing evidence as not to permit this Court's high regard
as a freedom "implicit in the concept of ordered liberty." At the time that the
Court held in Wolf that the amendment was applicable to the States through
the Due Process Clause, the cases of this Court as we have seen, had
steadfastly held that as to federal officers the Fourth Amendment included the
exclusion of the evidence seized in violation of its provisions. Even Wolf
"stoutly adhered" to that proposition. The right to when conceded operatively
enforceable against the States, was not susceptible of destruction by avulsion
of the sanction upon which its protection and enjoyment had always been
deemed dependent under the Boyd, Weeks and Silverthorne Cases.
Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches state or federal it was logically
and constitutionally necessarily that the exclusion doctrine an essential
part of the right to privacy be also insisted upon as an essential ingredient
of the right newly recognized by the Wolf Case. In short, the admission of the
new constitutional Right by Wolf could not tolerate denial of its most important
constitutional privilege, namely, the exclusion of the evidence which an
accused had been forced to give by reason of the unlawful seizure. To hold
otherwise is to grant the right but in reality to withhold its privilege and
enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter to compel respect for the constitutional
guaranty in the only effectively available way by removing the incentive to
disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the
entire system of constitutional restraints on which the liberties of the people
rest. Having once recognized that the right to privacy embodied in the Fourth
Amendment is enforceable against the States, and that the right to be secure
against rude invasions of privacy by state officers is, therefore constitutional
in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic
rights secured by its Due Process Clause, we can no longer permit it to be
revocable at the whim of any police officer who, in the name of law
enforcement itself, chooses to suspend its enjoyment. Our decision, founded
on reason and truth, gives to the individual no more than that which the
Constitution guarantees him to the police officer no less than that to which
honest law enforcement is entitled, and, to the courts, that judicial integrity so
necessary in the true administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit
of the constitutional injunction against unreasonable searches and seizures. To be
sure, if the applicant for a search warrant has competent evidence to establish
probable cause of the commission of a given crime by the party against whom the
warrant is intended, then there is no reason why the applicant should not comply with
the requirements of the fundamental law. Upon the other hand, if he has no such
competent evidence, then it is not possible for the Judge to find that there is probable
cause, and, hence, no justification for the issuance of the warrant. The only possible
explanation (not justification) for its issuance is the necessity of fishing evidence of the
commission of a crime. But, then, this fishing expedition is indicative of the absence of
evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal
search warrant and/or make unreasonable searches or seizures would suffice to
protect the constitutional guarantee under consideration, overlooks the fact that
violations thereof are, in general, committed By agents of the party in power, for,
certainly, those belonging to the minority could not possibly abuse a power they do not
have. Regardless of the handicap under which the minority usually but,
understandably finds itself in prosecuting agents of the majority, one must not lose
sight of the fact that the psychological and moral effect of the possibility 21 of securing
their conviction, is watered down by the pardoning power of the party for whose benefit
the illegality had been committed.
11
In their Motion for Reconsideration and Amendment of the Resolution of this Court
dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen
Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street,
and Room No. 304 of the Army-Navy Club, should be included among the premises
considered in said Resolution as residences of herein petitioners, Harry S. Stonehill,
Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the
records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their
exclusive possession and control, for the exclusion of which they have a standing
under the latest rulings of the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and
control over the aforementioned records, papers and effects, and the alleged
"personal" nature thereof, has Been Advanced, not in their petition or amended petition
herein, but in the Motion for Reconsideration and Amendment of the Resolution of
June 29, 1962. In other words, said theory would appear to be readjustment of that
followed in said petitions, to suit the approach intimated in the Resolution sought to be
reconsidered and amended. Then, too, some of the affidavits or copies of alleged
affidavits attached to said motion for reconsideration, or submitted in support thereof,
contain either inconsistent allegations, or allegations inconsistent with the theory now
advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said
motion for reconsideration, and the contents of the aforementioned affidavits and other
papers submitted in support of said motion, have sufficiently established the facts or
conditions contemplated in the cases relied upon by the petitioners; to warrant
application of the views therein expressed, should we agree thereto. At any rate, we do
not deem it necessary to express our opinion thereon, it being best to leave the matter
open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is
hereby, abandoned; that the warrants for the search of three (3) residences of herein
petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the
searches and seizures therein made are illegal; that the writ of preliminary injunction
heretofore issued, in connection with the documents, papers and other effects thus
seized in said residences of herein petitioners is hereby made permanent; that the
writs prayed for are granted, insofar as the documents, papers and other effects so
seized in the aforementioned residences are concerned; that the aforementioned
motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the
documents, papers and other effects seized in the twenty-nine (29) places, offices and
other premises enumerated in the same Resolution, without special pronouncement as
to costs. It is so ordered.
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA,
minors, and represented by their parents ANTONIO and RIZALINA OPOSA,
ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and
ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed
FLORES, minors and represented by their parents ENRICO and NIDA FLORES,
GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA,
minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN
ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and
MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by
her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor,
represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE
GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO
and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID
IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE
KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA,
minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA.
and REGINA MA., all surnamed ABAYA, minors, represented by their parents
ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed
CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH,
STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by
their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA,
DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL
NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and Natural Resources, and THE
HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch
66, respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational justice." Specifically, it
touches on the issue of whether the said petitioners have a cause of action to "prevent
the misappropriation or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems and continued rape of Mother
Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch
66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial
Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly
12
represented and joined by their respective parents. Impleaded as an additional plaintiff
is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural resources. The original
defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His substitution in this
petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently
ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a
taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of
the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the
natural resource treasure that is the country's virgin tropical forests." The same was
filed for themselves and others who are equally concerned about the preservation of
said resource but are "so numerous that it is impracticable to bring them all before the
Court." The minors further asseverate that they "represent their generation as well as
generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting
in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine archipelago of
7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed
with rich, lush and verdant rainforests in which varied, rare and unique species of flora
and fauna may be found; these rainforests contain a genetic, biological and chemical
pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful ecology, the country's land
area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest
cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial
and other uses; the distortion and disturbance of this balance as a consequence of
deforestation have resulted in a host of environmental tragedies, such as (a) water
shortages resulting from drying up of the water table, otherwise known as the "aquifer,"
as well as of rivers, brooks and streams, (b) salinization of the water table as a result
of the intrusion therein of salt water, incontrovertible examples of which may be found
in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and
the consequential loss of soil fertility and agricultural productivity, with the volume of
soil eroded estimated at one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes, (d) the endangering and
extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance
and dislocation of cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and consequential
destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the
entire country, (h) increasing velocity of typhoon winds which result from the absence
of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose of
supplying water for domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide gases which has led
to perplexing and catastrophic climatic changes such as the phenomenon of global
warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued
and deforestation are so capable of unquestionable demonstration that the same may
be submitted as a matter of judicial notice. This notwithstanding, they expressed their
intention to present expert witnesses as well as documentary, photographic and film
evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
hectares of rainforests constituting roughly 53% of the country's land mass.
9.Satellite images taken in 1987 reveal that there remained no more than 1.2
million hectares of said rainforests or four per cent (4.0%) of the country's land
area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-
growth rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical
secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted
timber license agreements ('TLA's') to various corporations to cut the aggregate
area of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto
attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum
or 25 hectares per hour nighttime, Saturdays, Sundays and holidays
included the Philippines will be bereft of forest resources after the end of this
ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and
irreparable damage of this continued trend of deforestation to the plaintiff
minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest
the remaining forest stands will work great damage and irreparable injury to
plaintiffs especially plaintiff minors and their successors who may never
see, use, benefit from and enjoy this rare and unique natural resource treasure.
13
This act of defendant constitutes a misappropriation and/or impairment of the
natural resource property he holds in trust for the benefit of plaintiff minors and
succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the parens
patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an
act violative of the rights of plaintiffs, especially plaintiff minors who may be left
with a country that is desertified (sic), bare, barren and devoid of the wonderful
flora, fauna and indigenous cultures which the Philippines had been abundantly
blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly
contrary to the public policy enunciated in the Philippine Environmental Policy
which, in pertinent part, states that it is the policy of the State
(a) to create, develop, maintain and improve conditions under which
man and nature can thrive in productive and enjoyable harmony with
each other;
(b) to fulfill the social, economic and other requirements of present and
future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned
TLA's is contradictory to the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and
wealth" and "make full and efficient use of natural resources
(sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources
(sic)" (Section 14, Article XIV, id.);
d."protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16, Article
II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the
natural law and violative of plaintiffs' right to self-preservation and
perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than
the instant action to arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain
that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion
is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned
motion to dismiss. 7 In the said order, not only was the defendant's claim that the
complaint states no cause of action against him and that it raises a political question
sustained, the respondent Judge further ruled that the granting of the relief prayed for
would result in the impairment of contracts which is prohibited by the fundamental law
of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the
Revised Rules of Court and ask this Court to rescind and set aside the dismissal order
on the ground that the respondent Judge gravely abused his discretion in dismissing
the action. Again, the parents of the plaintiffs-minors not only represent their children,
but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor General
(OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply
thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of
action as it contains sufficient allegations concerning their right to a sound environment
based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of
Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree
(P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology,
the concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in natural law.
Petitioners likewise rely on the respondent's correlative obligation per Section 4 of
E.O. No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment
clause, petitioners maintain that the same does not apply in this case because TLAs
are not contracts. They likewise submit that even if TLAs may be considered protected
by the said clause, it is well settled that they may still be revoked by the State when
the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any
14
relief is provided by law. They see nothing in the complaint but vague and nebulous
allegations concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be permitted in the
country is a political question which should be properly addressed to the executive or
legislative branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the passage
of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA remains
effective for a certain period of time usually for twenty-five (25) years. During its
effectivity, the same can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the agreement or
other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the
requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless, We hereby rule that the
said civil case is indeed a class suit. The subject matter of the complaint is of common
and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not
totally impossible, to bring all of them before the court. We likewise declare that the
plaintiffs therein are numerous and representative enough to ensure the full protection
of all concerned interests. Hence, all the requisites for the filing of a valid class suit
under Section 12, Rule 3 of the Revised Rules of Court are present both in the said
civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that
they represent their generation as well as generations yet unborn. We find no difficulty
in ruling that they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9
Such rhythm and harmony indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the country's forest, mineral,
land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end
that their exploration, development and utilization be equitably accessible to the
present as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of
a balanced and healthful ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed
to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not
hesitate to find for the petitioners and rule against the respondent Judge's challenged
order for having been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs have
but the noblest of all intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce and protect, or
a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule
2, RRC). Furthermore, the Court notes that the Complaint is replete with
vague assumptions and vague conclusions based on unverified data. In fine,
plaintiffs fail to state a cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy, may not
be taken cognizance of by this Court without doing violence to the sacred
principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the country and to cease and
desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment
of contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague assumptions and conclusions
based on unverified data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a
balanced and healthful ecology which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law. Section 16, Article II of the
1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature.
This right unites with the right to health which is provided for in the preceding
section of the same article:
Sec. 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it does not
follow that it is less important than any of the civil and political rights enumerated in the
latter. Such a right belongs to a different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation aptly and fittingly stressed
15
by the petitioners the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even
be written in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies by the Constitution
itself, thereby highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for the present generation, but
also for those to come generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. During the debates on this right in one of the
plenary sessions of the 1986 Constitutional Commission, the following exchange
transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna
who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily
carries with it the correlative duty of not impairing the same and, therefore,
sanctions may be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be
irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the
right to health, as well as the other related provisions of the Constitution concerning
the conservation, development and utilization of the country's natural resources, 13
then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14
Section 4 of which expressly mandates that the Department of Environment and
Natural Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's environment
and natural resources, specifically forest and grazing lands, mineral, resources,
including those in reservation and watershed areas, and lands of the public domain, as
well as the licensing and regulation of all natural resources as may be provided for by
law in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos." Section 3 thereof makes the
following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to
ensure the sustainable use, development, management, renewal, and
conservation of the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement of the quality of
the environment, and equitable access of the different segments of the
population to the development and the use of the country's natural resources,
not only for the present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value system including
social and environmental cost implications relative to their utilization,
development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of
the Filipino people, the full exploration and development as well as the
judicious disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources, consistent with the necessity of maintaining a
sound ecological balance and protecting and enhancing the quality of the
environment and the objective of making the exploration, development and
utilization of such natural resources equitably accessible to the different
segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system
that takes into account social and environmental cost implications relative to
the utilization, development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment." Section 2 of the same
Title, on the other hand, specifically speaks of the mandate of the DENR; however, it
makes particular reference to the fact of the agency's being subject to law and higher
authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural
Resources shall be primarily responsible for the implementation of the
foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying
out the State's constitutional mandate to control and supervise the
exploration, development, utilization, and conservation of the country's
natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which
will serve as the bases for policy formulation, and have defined the powers and
functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the
present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine
Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued.
The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is conducive to a life of dignity and well-
being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee
and guardian of the environment for succeeding generations." 17 The latter statute, on
the other hand, gave flesh to the said policy.
16
Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty under its mandate and by virtue of
its powers and functions under E.O. No. 192 and the Administrative Code of 1987 to
protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation
to respect or protect the same gives rise to a cause of action. Petitioners maintain that
the granting of the TLAs, which they claim was done with grave abuse of discretion,
violated their right to a balanced and healthful ecology; hence, the full protection
thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation
of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint itself. No other
matter should be considered; furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed hypothetically admitted. The only issue
to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante
vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the
utmost care and circumspection in passing upon a motion to dismiss on the ground of
the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the law
grants or recognizes is effectively nullified. If that happens, there is a blot on the legal
order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under
the introductory affirmative allegations, as well as the specific averments under the
sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the
claimed violation of their rights. On the basis thereof, they may thus be granted, wholly
or partly, the reliefs prayed for. It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need to implead, as party
defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question.
Policy formulation or determination by the executive or legislative branches of
Government is not squarely put in issue. What is principally involved is the
enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is
no longer, the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry
or review. The second paragraph of section 1, Article VIII of the Constitution states
that:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice
Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial
power, involving the settlement of conflicting rights as conferred as law. The
second part of the authority represents a broadening of judicial power to
enable the courts of justice to review what was before forbidden territory, to
wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the decisions of
the executive and the legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a
very elastic phrase that can expand or contract according to the disposition of
the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the
issue presented before us was political in nature, we would still not be
precluded from revolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question. Article VII,
Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a quo declared
that:
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the country and to cease and
desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment
of contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such
a sweeping pronouncement. In the first place, the respondent Secretary did not, for
obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he
had done so, he would have acted with utmost infidelity to the Government by
providing undue and unwarranted benefits and advantages to the timber license
holders because he would have forever bound the Government to strictly respect the
said licenses according to their terms and conditions regardless of changes in policy
and the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section 20 of the
Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses
or any other form of privilege granted herein . . .
17
Needless to say, all licenses may thus be revoked or rescinded by executive action. It In other words, the constitutional guaranty of non-impairment of obligations of
is not a contract, property or a property right protested by the due process clause of contract is limited by the exercise of the police power of the State, in the
the Constitution. In Tan vs. Director of Forestry, 25 this Court held: interest of public health, safety, moral and general welfare.
. . . A timber license is an instrument by which the State regulates the The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in
utilization and disposition of forest resources to the end that public welfare is Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
promoted. A timber license is not a contract within the purview of the due Under our form of government the use of property and the making of
process clause; it is only a license or privilege, which can be validly contracts are normally matters of private and not of public concern. The
withdrawn whenever dictated by public interest or public welfare as in this general rule is that both shall be free of governmental interference. But
case. neither property rights nor contract rights are absolute; for government cannot
A license is merely a permit or privilege to do what otherwise would be exist if the citizen may at will use his property to the detriment of his fellows,
unlawful, and is not a contract between the authority, federal, state, or or exercise his freedom of contract to work them harm. Equally fundamental
municipal, granting it and the person to whom it is granted; neither is it with the private right is that of the public to regulate it in the common interest.
property or a property right, nor does it create a vested right; nor is it taxation In short, the non-impairment clause must yield to the police power of the state. 31
(37 C.J. 168). Thus, this Court held that the granting of license does not
create irrevocable rights, neither is it property or property rights (People vs. Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause
Ong Tin, 54 O.G. 7576). could apply with respect to the prayer to enjoin the respondent Secretary from
receiving, accepting, processing, renewing or approving new timber licenses for, save
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy in cases of renewal, no contract would have as of yet existed in the other instances.
Executive Secretary: 26 Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.
. . . Timber licenses, permits and license agreements are the principal WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED,
instruments by which the State regulates the utilization and disposition of and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case
forest resources to the end that public welfare is promoted. And it can hardly No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to
be gainsaid that they merely evidence a privilege granted by the State to implead as defendants the holders or grantees of the questioned timber license
qualified entities, and do not vest in the latter a permanent or irrevocable right agreements.
to the particular concession area and the forest products therein. They may
be validly amended, modified, replaced or rescinded by the Chief Executive No pronouncement as to costs.
when national interests so require. Thus, they are not deemed contracts SO ORDERED.
within the purview of the due process of law clause [See Sections 3(ee) and
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and
20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry,
Quiason, JJ., concur.
G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant
case does not involve a law or even an executive issuance declaring the cancellation
or modification of existing timber licenses. Hence, the non-impairment clause cannot
as yet be invoked. Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be stigmatized as a
violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and healthful
ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster
Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and welfare.
18
G.R. No. L-4254 September 26, 1951
BORIS MEJOFF, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
TUASON, J.:
This is a second petition for habeas corpus by Boris Mejoff, the first having been
denied in a decision of this Court of July 30, 1949. The history of the petitioner's
detention was thus briefly set forth in that decision, written by Mr. Justice Bengzon:
The petitioner Boris Mejoff is an alien of Russian descent who was brought to this
country from Shanghai as a secret operative by the Japanese forces during the latter's
regime in these Islands. Upon liberation he was arrested as a Japanese spy, by U.S.
Army Counter Intelligence Corps. Later he was handed to theCommonwealth
Government for disposition in accordance with Commonwealth Act No. 682.
Thereafter, the People's Court ordered his release. But the deportation Board taking
his case up, found that having no travel documents Mejoff was illegally in this country,
and consequently referred the matter to the immigration authorities. After the
corresponding investigation, the Board of commissioners of Immigration on April 5,
1948, declared that Mejoff had entered the Philippines illegally in 1944, without
inspection and admission by the immigration officials at a designation port of entry
and, therefore, it ordered that he be deported on the first available transportation to
Russia. The petitioner was then under custody, he having been arrested on March 18,
1948. In May 1948 he was transferred to the Cebu Provincial Jail together with three
other Russians to await the arrival of some Russian vessels. In July and August of that
year two boats of Russian nationality called at the Cebu Port. But their masters
refused to take petitioner and his companions alleging lack of authority to do so. In
October 1948 after repeated failures to ship this deportee abroad, the authorities
removed him to Bilibid Prison at Muntinglupa where he has been confined up to the
present time, inasmuch as the Commissioner of Immigration believes it is for the best
interests of the country to keep him under detention while arrangements for his
departure are being made.
The Court held the petitioner's detention temporary and said that "temporary detention
is a necessary step in the process of exclusion or expulsion of undesirable aliens and
that pending arrangements for his deportation, the Government has the right to hold
the undesirable alien under confinement for a reasonable lenght of time." It took note
of the fact, manifested by the Solicitor General's representative in the course of the of
the oral argumment, that "this Government desires to expel the alien, and does not
relish keeping him at the people's expense . . . making efforts to carry out the decree
of exclusion by the highest officer of the land." No period was fixed within which the
immigration authorities should carry out the contemplated deportation beyond the
statement that "The meaning of 'reasonable time' depends upon the circumstances,
specially the difficulties of obtaining a passport, the availability of transportation, the
diplomatic arrangements with the governments concerned and the efforts displayed to
send the deportee away;" but the Court warned that "under established precedents,
too long a detention may justify the issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the
writer of this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for
outright discharge of the prisoner from custody. Mr. Justice Paras qualified his dissent
by stating that he might agree "to further detention of the herein petitioner, provided
that he be released if after six months, the Government is still unable to deport him."
This writer joined in the latter dissent but thought that two months constituted
reasonable time.
Over two years having elapsed since the decision aforesaid was promulgated, the
Government has not found way and means of removing the petitioner out of the
country, and none are in sight, although it should be said in justice to the deportation
authorities, it was through no fault of theirs that no ship or country would take the
petitioner.
Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs.
Wixon, Sept. 18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the
petitioner claims to be. It is no less true however, as impliedly stated in this Court's
decision, supra, that foreign nationals, not enemy against whom no charge has been
made other than that their permission to stay has expired, may not indefinitely be kept
in detention. The protection against deprivation of liberty without due process of law
and except for crimes committed against the laws of the land is not limited to Philippine
citizens but extends to all residents, except enemy aliens, regardless of nationality.
Whether an alien who entered the country in violation of its immigration laws may be
detained for as long as the Government is unable to deport him, is a point we need not
decide. The petitioner's entry into the Philippines was not unlawful; he was brought by
the armed and belligerent forces of a de facto government whose decrees were law
furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally
accepted principles of international law as part of the law of Nation." And in a
resolution entitled "Universal Declaration of Human Rights" and approved by the
General Assembly of the United Nations of which the Philippines is a member, at its
plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there
resolved that "All human beings are born free and equal in degree and rights" (Art. 1);
that "Everyone is entitled to all the rights and freedom set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, nationality or social origin, property, birth, or other status" (Art. 2): that
"Every one has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8);
that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to
release from custody an alien who has been detained an unreasonably long period of
time by the Department of Justice after it has become apparent that although a warrant
for his deportation has been issued, the warrant can not be effectuated;" that "the
theory on which the court is given the power to act is that the warrant of deportation,
not having been able to be executed, is functus officio and the alien is being held
without any authority of law." The decision cited several cases which, it said, settled
the matter definitely in that jurisdiction, adding that the same result had reached in
innumerable cases elsewhere. The cases referred to were United States ex rel. Ross
vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955;
19
Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews,
D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp.
425.
The most recent case, as far as we have been able to find, was that of Staniszewski
vs. Watkins (1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at
hand. In that case a stateless person, formerly a Polish national, resident in the United
States since 1911 and many times serving as a seaman on American vessels both in
peace and in war, was ordered excluded from the United States and detained at Ellis
Island at the expense of the steamship company, when he returned from a voyage on
which he had shipped from New York for one or more European ports and return to the
United States. The grounds for his exclusion were that he had no passport or
immigration visa, and that in 1937 had been convicted of perjury because in certain
documents he presented himself to be an American citizen. Upon his application for
release on habeas corpus, the Court released him upon his own recognizance. Judge
Leibell, of the United States District Court for the Southern District of New York, said in
part:
When the return to the writ of habeas corpus came before this court, I suggested that
all interested parties . . . make an effort to arrange to have the petitioner ship out of
some country that he would receive him as a resident. He is, a native-born Pole but
the Polish Consul has advised him in writing that he is no longer a Polish subject. This
Government does not claim that he is a Polish citizen. His attorney says he is a
stateless. The Government is willing that he go back to the ship, but if he were sent
back aboard a ship and sailed to the Port (Cherbourg, France) from which he last
sailed to the United States, he would probably be denied permission to land. There is
no other country that would take him, without proper documents.
It seems to me that this is a genuine hardship case and that the petitioner should be
released from custody on proper terms. . . .
What is to be done with the petitioner? The government has had him in custody almost
seven months and practically admits it has no place to send him out of this country.
The steamship company, which employed him as one of a group sent to the ship by
the Union, with proper seaman's papers issued by the United States Coast Guard, is
paying $3 a day for petitioner's board at Ellis Island. It is no fault of the steamship
company that petitioner is an inadmissible alien as the immigration officials describe
him. . . .
I intend to sustain the writ of habeas corpus and order the release of the petitioner on
his own recognizance. He will be required to inform the immigration officials at Ellis
Island by mail on the 15th of each month, stating where he is employed and where he
can be reached by mail. If the government does succeed in arranging for petitioner's
deportation to a country that will be ready to receive him as a resident, it may then
advise the petitioner to that effect and arrange for his deportation in the manner
provided by law.
Although not binding upon this Court as a precedent, the case aforecited affords a
happy solution to the quandry in which the parties here finds themselves, solution
which we think is sensible, sound and compatible with law and the Constitution. For
this reason, and since the Philippine law on immigration was patterned after or copied
from the American law and practice, we choose to follow and adopt the reasoning and
conclusions in the Staniszewski decision with some modifications which, it is believed,
are in consonance with the prevailing conditions of peace and order in the Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the
return, that the petitioner was engaged in subversive activities, and fear was
expressed that he might join or aid the disloyal elements if allowed to be at large.
Bearing in mind the Government's allegation in its answer that "the herein petitioner
was brought to the Philippines by the Japanese forces," and the fact that Japan is no
longer at war with the United States or the Philippines nor identified with the countries
allied against these nations, the possibility of the petitioner's entertaining or committing
hostile acts prejudicial to the interest and security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists, still the petitioner's
unduly prolonged detention would be unwarranted by law and the Constitution, if the
only purpose of the detention be to eliminate a danger that is by no means actual,
present, or uncontrolable. After all, the Government is not impotent to deal with or
prevent any threat by such measure as that just outlined. The thought eloquently
expressed by Mr. Justice Jackson of the United States Supreme Court in connection
with the appliccation for bail of ten Communists convicted by a lower court of advocacy
of violent overthrow of the United States Government is, in principle, pertinent and may
be availed of at this juncture. Said the learned Jurist:
The Governmet's alternative contention is that defendants, by misbehavior after
conviction, have forfeited their claim to bail. Grave public danger is said to result from
what they may be expected to do, in addition to what they have done since their
conviction. If I assume that defendants are disposed to commit every opportune
disloyal to act helpful to Communist countries, it is still difficult to reconcile with
traditional American law the jailing of persons by the courts because of anticipated but
as yet uncommitted crimes. lmprisonment to protect society from predicted but
unconsummated offenses is so unprecedented in this country and so fraught with
danger of excesses and injustice that I am loath to resort it, even as a discretionary
judicial technique to supplement conviction of such offenses as those of which
defendants stand convicted.
But the right of every American to equal treatment before the law is wrapped up in the
same constitutional bundle with those of these Communists. If an anger or disgust with
these defendants we throw out the bundle, we alsocast aside protection for the
liberties of more worthy critics who may be in opposition to the government of some
future day.
xxx xxx x x x1wphl.nt
If, however, I were to be wrong on all of these abstract or theoretical matters of
principle, there is a very practical aspect of this application which must not be
overlooked or underestimated that is the disastrous effect on the reputation of
American justice if I should now send these men to jail and the full Court later decide
that their conviction is invalid. All experience with litigation teaches that existence of a
substantial question about a conviction implies a more than negligible risk of reversal.
Indeed this experience lies back of our rule permitting and practice of allowing bail
where such questions exist, to avoid the hazard of unjustifiably imprisoning persons
with consequent reproach to our system of justice. If that is prudent judicial practice in
the ordinary case, how much more important to avoid every chance of handing to the
Communist world such an ideological weapon as it would have if this country should
20
imprison this handful of Communist leaders on a conviction that our highest Court
would confess to be illegal. Risks, of course, are involved in either granting or refusing
bail. I am naive enough to underestimate the troublemaking propensities of the
defendants. But, with the Department of Justice alert to the the dangers, the worst they
can accomplish in the short time it will take to end the litigation is preferable to the
possibility of national embarrassment from a celebrated case of unjustified
imprisonment of Communist leaders. Under no circumstances must we permit their
symbolization of an evil force in the world to be hallowed and glorified by any
semblance of martyrdom. The way to avoid that risk is not to jail these men until it is
finally decided that they should stay jailed.
If that case is not comparable with ours on the issues presented, its underlying
principle is of universal application. In fact, its ratio decidendi applies with greater force
to the present petition, since the right of accused to bail pending apppeal of his case,
as in the case of the ten Communists, depends upon the discretion of the court,
whereas the right to be enlarged before formal charges are instituted is absolute. As
already noted, not only are there no charges pending against the petitioner, but the
prospects of bringing any against him are slim and remote.
Premises considered, the writ will issue commanding the respondents to release the
petitioner from custody upon these terms: The petitioner shall be placed under the
surveillance of the immigration authorities or their agents in such form and manner as
may be deemed adequate to insure that he keep peace and be available when the
Government is ready to deport him. The surveillance shall be reasonable and the
question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the
above purpose in the amount of P5,000 with sufficient surety or sureties, which bond
the Commissioner of Immigration is authorized to exact by section 40 of
Commonwealth Act No. 613.
No costs will be charged.
Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE,
Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel
PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and
ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S.
Melville Hussey for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in The Philippines during a
period covering 19433 and 19444 who is now charged before a military Commission
convened by the Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such command,
permitting them to commit brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of
the laws and customs of war" comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and
prohibit respondents Melville S. Hussey and Robert Port from participating in the
prosecution of petitioner's case before the Military Commission and to permanently
prohibit respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only
the provision of our constitutional law but also our local laws to say nothing of the fact
(that) the Philippines is not a signatory nor an adherent to the Hague Convention on
Rules and Regulations covering Land Warfare and therefore petitioners is charged of
'crimes' not based on law, national and international." Hence petitioner argues "That
in view off the fact that this commission has been empanelled by virtue of an
unconstitutional law an illegal order this commission is without jurisdiction to try herein
petitioner."
Second. That the participation in the prosecution of the case against petitioner
before the Commission in behalf of the United State of America of attorneys Melville
Hussey and Robert Port who are not attorneys authorized by the Supreme Court to
practice law in the Philippines is a diminution of our personality as an independent
state and their appointment as prosecutor are a violation of our Constitution for the
reason that they are not qualified to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the
United State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule
and regulation governing the trial of accused war criminals, was issued by the
President of the Philippines on the 29th days of July, 1947 This Court holds that this
order is valid and constitutional. Article 2 of our Constitution provides in its section 3,
that
21
The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present
day including the Hague Convention the Geneva Convention and significant
precedents of international jurisprudence established by the United Nation all those
person military or civilian who have been guilty of planning preparing or waging a war
of aggression and of the commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war, of humanity and
civilization are held accountable therefor. Consequently in the promulgation and
enforcement of Execution Order No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies of international law which are part
of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power
as Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said
War is not ended simply because hostilities have ceased. After cessation of armed
hostilities incident of war may remain pending which should be disposed of as in time
of war. An importance incident to a conduct of war is the adoption of measure by the
military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.)
Indeed the power to create a military commission for the trial and punishment of war
criminals is an aspect of waging war. And in the language of a writer a military
commission has jurisdiction so long as a technical state of war continues. This
includes the period of an armistice or military occupation up to the effective of a treaty
of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals
by Military Tribunals, America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to
consummate this unfinished aspect of war namely the trial and punishment of war
criminal through the issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try
petitioner for acts committed in violation of the Hague Convention and the Geneva
Convention because the Philippines is not a signatory to the first and signed the
second only in 1947. It cannot be denied that the rules and regulation of the Hague
and Geneva conventions form, part of and are wholly based on the generally accepted
principals of international law. In facts these rules and principles were accepted by the
two belligerent nation the United State and Japan who were signatories to the two
Convention, Such rule and principles therefore form part of the law of our nation even
if the Philippines was not a signatory to the conventions embodying them for our
Constitution has been deliberately general and extensive in its scope and is not
confined to the recognition of rule and principle of international law as continued inn
treaties to which our government may have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was under the sovereignty of United States and thus we were equally
bound together with the United States and with Japan to the right and obligation
contained in the treaties between the belligerent countries. These rights and obligation
were not erased by our assumption of full sovereignty. If at all our emergency as a free
state entitles us to enforce the right on our own of trying and punishing those who
committed crimes against crimes against our people. In this connection it is well to
remember what we have said in the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime of treason committed during
then Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government
while we were a Commonwealth are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S.
Hussey and Robert Port in the prosecution of his case on the ground that said
attorney's are not qualified to practice law in Philippines in accordance with our Rules
of court and the appointment of said attorneys as prosecutors is violative of our
national sovereignty.
In the first place respondent Military Commission is a special military tribunal governed
by a special law and not by the Rules of court which govern ordinary civil court. It has
already been shown that Executive Order No. 68 which provides for the organization of
such military commission is a valid and constitutional law. There is nothing in said
executive order which requires that counsel appearing before said commission must
be attorneys qualified to practice law in the Philippines in accordance with the Rules of
Court. In facts it is common in military tribunals that counsel for the parties are usually
military personnel who are neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the
vindication of crimes against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very crimes. If there has been
any relinquishment of sovereignty it has not been by our government but by the United
State Government which has yielded to us the trial and punishment of her enemies.
The least that we could do in the spirit of comity is to allow them representation in said
trials.
Alleging that the United State is not a party in interest in the case petitioner challenges
the personality of attorneys Hussey and Port as prosecutors. It is of common
knowledge that the United State and its people have been equally if not more greatly
aggrieved by the crimes with which petitioner stands charged before the Military
Commission. It can be considered a privilege for our Republic that a leader nation
should submit the vindication of the honor of its citizens and its government to a
military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with
jurisdiction over the crimes charged which fall under the provisions of Executive Order
No. 68, and having said petitioner in its custody, this Court will not interfere with the
due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.
22
G.R. No. 153675 April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION,
represented by the Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules
of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial
Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.)
issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001
allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated
April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed
by the Government of Hong Kong Special Administrative Region, represented by the
Philippine Department of Justice (DOJ), petitioner. The petition alleges that both
Orders were issued by respondent judge with grave abuse of discretion amounting to
lack or excess of jurisdiction as there is no provision in the Constitution granting bail to
a potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British Crown
Colony of Hong Kong signed an "Agreement for the Surrender of Accused and
Convicted Persons." It took effect on June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and
became the Hong Kong Special Administrative Region.
Private respondent Muoz was charged before the Hong Kong Court with three (3)
counts of the offense of "accepting an advantage as agent," in violation of Section 9
(1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces
seven (7) counts of the offense of conspiracy to defraud, penalized by the common law
of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were
issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years
for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice
a request for the provisional arrest of private respondent. The DOJ then forwarded the
request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC
of Manila, Branch 19 an application for the provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest
against private respondent. That same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order
of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari,
docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be
reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the
DOJ and sustaining the validity of the Order of Arrest against private respondent. The
Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special
Administrative Region filed with the RTC of Manila a petition for the extradition of
private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10,
presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the
same case,- a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the
petition for bail, holding that there is no Philippine law granting bail in extradition cases
and that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil
Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the
Order denying his application for bail. This was granted by respondent judge in an
Order dated December 20, 2001 allowing private respondent to post bail, thus:
In conclusion, this Court will not contribute to accuseds further erosion of civil liberties.
The petition for bail is granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby
undertakes that he will appear and answer the issues raised in these proceedings and
will at all times hold himself amenable to orders and processes of this Court, will
further appear for judgment. If accused fails in this undertaking, the cash bond will be
forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing its own
motion for hold departure order before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if
they so desire to the nearest office, at any time and day of the week; and if they further
desire, manifest before this Court to require that all the assets of accused, real and
personal, be filed with this Court soonest, with the condition that if the accused flees
from his undertaking, said assets be forfeited in favor of the government and that the
corresponding lien/annotation be noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order,
but it was denied by respondent judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave
abuse of discretion amounting to lack or excess of jurisdiction in admitting private
respondent to bail; that there is nothing in the Constitution or statutory law providing
that a potential extraditee has a right to bail, the right being limited solely to criminal
proceedings.
23
In his comment on the petition, private respondent maintained that the right to bail
guaranteed under the Bill of Rights extends to a prospective extraditee; and that
extradition is a harsh process resulting in a prolonged deprivation of ones liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be
impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ of habeas corpus
is suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is
not the first time that this Court has an occasion to resolve the question of whether a
prospective extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding
Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,
1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later
Chief Justice, held that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on
bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only
when a person has been arrested and detained for violation of Philippine criminal laws.
It does not apply to extradition proceedings because extradition courts do not render
judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in
favor of every accused who should not be subjected to the loss of freedom as
thereafter he would be entitled to acquittal, unless his guilt be proved beyond
reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per
Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply
to a case like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended" does not detract
from the rule that the constitutional right to bail is available only in criminal
proceedings. It must be noted that the suspension of the privilege of the writ of habeas
corpus finds application "only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence,
the second sentence in the constitutional provision on bail merely emphasizes the right
to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to
mean that the right is available even in extradition proceedings that are not criminal in
nature.
At first glance, the above ruling applies squarely to private respondents case.
However, this Court cannot ignore the following trends in international law: (1) the
growing importance of the individual person in public international law who, in the 20th
century, has gradually attained global recognition; (2) the higher value now being given
to human rights in the international sphere; (3) the corresponding duty of countries to
observe these universal human rights in fulfilling their treaty obligations; and (4) the
duty of this Court to balance the rights of the individual under our fundamental law, on
one hand, and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights. Slowly, the recognition that the
individual person may properly be a subject of international law is now taking root. The
vulnerable doctrine that the subjects of international law are limited only to states was
dramatically eroded towards the second half of the past century. For one, the
Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle
of individual defendants for acts characterized as violations of the laws of war, crimes
against peace, and crimes against humanity. Recently, under the Nuremberg principle,
Serbian leaders have been persecuted for war crimes and crimes against humanity
committed in the former Yugoslavia. These significant events show that the individual
person is now a valid subject of international law.
On a more positive note, also after World War II, both international organizations and
states gave recognition and importance to human rights. Thus, on December 10, 1948,
the United Nations General Assembly adopted the Universal Declaration of Human
Rights in which the right to life, liberty and all the other fundamental rights of every
person were proclaimed. While not a treaty, the principles contained in the said
Declaration are now recognized as customarily binding upon the members of the
international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting
bail to a prospective deportee, held that under the Constitution,3 the principles set
forth in that Declaration are part of the law of the land. In 1966, the UN General
Assembly also adopted the International Covenant on Civil and Political Rights which
the Philippines signed and ratified. Fundamental among the rights enshrined therein
are the rights of every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to
uphold the fundamental human rights as well as value the worth and dignity of every
person. This commitment is enshrined in Section II, Article II of our Constitution which
provides: "The State values the dignity of every human person and guarantees full
respect for human rights." The Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to liberty and due process, ensuring
that those detained or arrested can participate in the proceedings before a court, to
enable it to decide without delay on the legality of the detention and order their release
if justified. In other words, the Philippine authorities are under obligation to make
available to every person under detention such remedies which safeguard their
fundamental right to liberty. These remedies include the right to be admitted to bail.
While this Court in Purganan limited the exercise of the right to bail to criminal
proceedings, however, in light of the various international treaties giving recognition
and protection to human rights, particularly the right to life and liberty, a reexamination
of this Courts ruling in Purganan is in order.
First, we note that the exercise of the States power to deprive an individual of his
liberty is not necessarily limited to criminal proceedings. Respondents in administrative
proceedings, such as deportation and quarantine,4 have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise of the right
to bail to criminal proceedings only. This Court has admitted to bail persons who are
not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to
24
persons in detention during the pendency of administrative proceedings, taking into
cognizance the obligation of the Philippines under international conventions to uphold
human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing
deportation for failure to secure the necessary certificate of registration was granted
bail pending his appeal. After noting that the prospective deportee had committed no
crime, the Court opined that "To refuse him bail is to treat him as a person who has
committed the most serious crime known to law;" and that while deportation is not a
criminal proceeding, some of the machinery used "is the machinery of criminal law."
Thus, the provisions relating to bail was applied to deportation proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this
Court ruled that foreign nationals against whom no formal criminal charges have been
filed may be released on bail pending the finality of an order of deportation. As
previously stated, the Court in Mejoff relied upon the Universal declaration of Human
Rights in sustaining the detainees right to bail.
If bail can be granted in deportation cases, we see no justification why it should not
also be allowed in extradition cases. Likewise, considering that the Universal
Declaration of Human Rights applies to deportation cases, there is no reason why it
cannot be invoked in extradition cases. After all, both are administrative proceedings
where the innocence or guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be
viewed in the light of the various treaty obligations of the Philippines concerning
respect for the promotion and protection of human rights. Under these treaties, the
presumption lies in favor of human liberty. Thus, the Philippines should see to it that
the right to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law)
defines "extradition" as "the removal of an accused from the Philippines with the object
of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of
the requesting state or government."
Extradition has thus been characterized as the right of a foreign power, created by
treaty, to demand the surrender of one accused or convicted of a crime within its
territorial jurisdiction, and the correlative duty of the other state to surrender him to the
demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a
criminal, an extradition proceeding is not by its nature criminal, for it is not punishment
for a crime, even though such punishment may follow extradition.10 It is sui generis,
tracing its existence wholly to treaty obligations between different nations.11 It is not a
trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-
blown civil action, but one that is merely administrative in character.13 Its object is to
prevent the escape of a person accused or convicted of a crime and to secure his
return to the state from which he fled, for the purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is characterized by the following:
(a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the
means employed to attain the purpose of extradition is also "the machinery of criminal
law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law)
which mandates the "immediate arrest and temporary detention of the accused" if such
"will best serve the interest of justice." We further note that Section 20 allows the
requesting state "in case of urgency" to ask for the "provisional arrest of the accused,
pending receipt of the request for extradition;" and that release from provisional arrest
"shall not prejudice re-arrest and extradition of the accused if a request for extradition
is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all
earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a
prolonged restraint of liberty, and forced to transfer to the demanding state following
the proceedings. "Temporary detention" may be a necessary step in the process of
extradition, but the length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and
remained incarcerated until December 20, 2001, when the trial court ordered his
admission to bail. In other words, he had been detained for over two (2) years without
having been convicted of any crime. By any standard, such an extended period of
detention is a serious deprivation of his fundamental right to liberty. In fact, it was this
prolonged deprivation of liberty which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee,
however, there is no provision prohibiting him or her from filing a motion for bail, a right
to due process under the Constitution.
The applicable standard of due process, however, should not be the same as that in
criminal proceedings. In the latter, the standard of due process is premised on the
presumption of innocence of the accused. As Purganan correctly points out, it is from
this major premise that the ancillary presumption in favor of admitting to bail arises.
Bearing in mind the purpose of extradition proceedings, the premise behind the
issuance of the arrest warrant and the "temporary detention" is the possibility of flight
of the potential extraditee. This is based on the assumption that such extraditee is a
fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the
onus probandi of showing that he or she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor
its obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our
foreign relations and defeats the purpose of extradition. However, it does not
necessarily mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditees rights to life, liberty, and due process. More so, where
these rights are guaranteed, not only by our Constitution, but also by international
conventions, to which the Philippines is a party. We should not, therefore, deprive an
extraditee of his right to apply for bail, provided that a certain standard for the grant is
satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting
or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor
the standard of proof of preponderance of evidence in civil cases. While administrative
in character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective
extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard
which he termed "clear and convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be lower than proof beyond
25
reasonable doubt but higher than preponderance of evidence. The potential extraditee
must prove by "clear and convincing evidence" that he is not a flight risk and will abide
with all the orders and processes of the extradition court.
In this case, there is no showing that private respondent presented evidence to show
that he is not a flight risk. Consequently, this case should be remanded to the trial
court to determine whether private respondent may be granted bail on the basis of
"clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of "clear and
convincing evidence." If not, the trial court should order the cancellation of his bail
bond and his immediate detention; and thereafter, conduct the extradition proceedings
with dispatch.
SO ORDERED.
G.R. No. 100150 January 5, 1994
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND
GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN
DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the Commission on Human Rights ("CHR") is
again placed into focus in this petition for prohibition, with prayer for a restraining order
and preliminary injunction. The petitioners ask us to prohibit public respondent CHR
from further hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et al.
vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos
Quimpo (one of the petitioners) in his capacity as an Executive Officer of the Quezon
City Integrated Hawkers Management Council under the Office of the City Mayor, was
sent to, and received by, the private respondents (being the officers and members of
the North EDSA Vendors Association, Incorporated). In said notice, the respondents
were given a grace-period of three (3) days (up to 12 July 1990) within which to vacate
the questioned premises of North EDSA. 1 Prior to their receipt of the demolition
notice, the private respondents were informed by petitioner Quimpo that their stalls
should be removed to give way to the "People's Park". 2 On 12 July 1990, the group,
led by their President Roque Fermo, filed a letter-complaint (Pinag-samang
Sinumpaang Salaysay) with the CHR against the petitioners, asking the late CHR
Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor Brigido
Simon, Jr., of Quezon City to stop the demolition of the private respondents' stalls,
sari-sari stores, and carinderia along North EDSA. The complaint was docketed as
CHR Case No. 90-1580. 3 On 23 July 1990, the CHR issued an Order, directing the
petitioners "to desist from demolishing the stalls and shanties at North EDSA pending
resolution of the vendors/squatters' complaint before the Commission" and ordering
said petitioners to appear before the CHR. 4
On the basis of the sworn statements submitted by the private respondents on 31 July
1990, as well as CHR's own ocular inspection, and convinced that on 28 July 1990 the
petitioners carried out the demolition of private respondents' stalls, sari-sari stores and
carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the disbursement of
financial assistance of not more than P200,000.00 in favor of the private respondents
to purchase light housing materials and food under the Commission's supervision and
again directed the petitioners to "desist from further demolition, with the warning that
violation of said order would lead to a citation for contempt and arrest." 6
A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The
motion also averred, among other things, that:
26
1. this case came about due to the alleged violation by the (petitioners) of the
Inter-Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred
to therein refers to moratorium in the demolition of the structures of poor dwellers;
4. that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1
August 1990 that the complainants are indeed, vendors;
5. that the complainants (were) occupying government land, particularly the
sidewalk of EDSA corner North Avenue, Quezon City; . . . and
6. that the City Mayor of Quezon City (had) the sole and exclusive discretion
and authority whether or not a certain business establishment (should) be allowed to
operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if already
issued, upon grounds clearly specified by law and ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for postponement,
arguing that the motion to dismiss set for 21 September 1990 had yet to be resolved.
The petitioners likewise manifested that they would bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners,
stating that the Commission's authority should be understood as being confined only to
the investigation of violations of civil and political rights, and that "the rights allegedly
violated in this case (were) not civil and political rights, (but) their privilege to engage in
business." 9
On 21 September 1990, the motion to dismiss was heard and submitted for resolution,
along with the contempt charge that had meantime been filed by the private
respondents, albeit vigorously objected to by petitioners (on the ground that the motion
to dismiss was still then unresolved). 10
In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt
for carrying out the demolition of the stalls, sari-sari stores and carinderia despite the
"order to desist", and it imposed a fine of P500.00 on each of them.
On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss
and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of the
gross violations of their human and constitutional rights. The motion to dismiss should
be and is hereby DENIED for lack of merit. 13
The CHR opined that "it was not the intention of the (Constitutional) Commission to
create only a paper tiger limited only to investigating civil and political rights, but it
(should) be (considered) a quasi-judicial body with the power to provide appropriate
legal measures for the protection of human rights of all persons within the
Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to development, to life and to
dignity. All these brazenly and violently ignored and trampled upon by respondents
with little regard at the same time for the basic rights of women and children, and their
health, safety and welfare. Their actions have psychologically scarred and traumatized
the children, who were witness and exposed to such a violent demonstration of Man's
inhumanity to man.
In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution 16 of 18 June 1991, in which we
also issued a temporary restraining order, directing the CHR to "CEASE and DESIST
from further hearing CHR No. 90-1580." 17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the private
respondents whose stalls were demolished by the petitioners at the instance and
authority given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors
affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused from
filing his comment for public respondent CHR. The latter thus filed its own comment,
18 through Hon. Samuel Soriano, one of its Commissioners. The Court also resolved
to dispense with the comment of private respondent Roque Fermo, who had since
failed to comply with the resolution, dated 18 July 1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution. 19 It was formally constituted by then President Corazon Aquino via
Executive Order No. 163, 20 issued on 5 May 1987, in the exercise of her legislative
power at the time. It succeeded, but so superseded as well, the Presidential
Committee on Human Rights. 21
The powers and functions 22 of the Commission are defined by the 1987 Constitution,
thus: to
(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human rights
have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
27
(5) Establish a continuing program of research, education, and information to
enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human rights
and to provide for compensation to victims of violations of human rights, or their
families;
(7) Monitor the Philippine Government's compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes
that the intention of the members of the Constitutional Commission is to make CHR a
quasi-judicial body. 23 This view, however, has not heretofore been shared by this
Court. In Cario v. Commission on Human Rights, 24 the Court, through then
Associate Justice, now Chief Justice Andres Narvasa, has observed that it is "only the
first of the enumerated powers and functions that bears any resemblance to
adjudication or adjudgment," but that resemblance can in no way be synonymous to
the adjudicatory power itself. The Court explained:
. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to
be another court or quasi-judicial agency in this country, or duplicate much less take
over the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power is
that it may investigate, i.e., receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even
a quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals or modes of review as
may be provided by law. This function, to repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other kernel
of this controversy and, its is, to determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a term that any
attempt to define it, albeit not a few have tried, could at best be described as
inconclusive. Let us observe. In a symposium on human rights in the Philippines,
sponsored by the University of the Philippines in 1977, one of the questions that has
been propounded is "(w)hat do you understand by "human rights?" The participants,
representing different sectors of the society, have given the following varied answers:
Human rights are the basic rights which inhere in man by virtue of his humanity. They
are the same in all parts of the world, whether the Philippines or England, Kenya or the
Soviet Union, the United States or Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty, and property; freedom
of speech, of the press, of religion, academic freedom, and the rights of the accused to
due process of law; political rights, such as the right to elect public officials, to be
elected to public office, and to form political associations and engage in politics; and
social rights, such as the right to an education, employment, and social services. 25
Human rights are the entitlement that inhere in the individual person from the sheer
fact of his humanity. . . . Because they are inherent, human rights are not granted by
the State but can only be recognized and protected by it. 26
(Human rights include all) the civil, political, economic, social, and cultural rights
defined in the Universal Declaration of Human Rights. 27
Human rights are rights that pertain to man simply because he is human. They are part
of his natural birth, right, innate and inalienable. 28
The Universal Declaration of Human Rights, as well as, or more specifically, the
International Covenant on Economic, Social and Cultural Rights and International
Covenant on Civil and Political Rights, suggests that the scope of human rights can be
understood to include those that relate to an individual's social, economic, cultural,
political and civil relations. It thus seems to closely identify the term to the universally
accepted traits and attributes of an individual, along with what is generally considered
to be his inherent and inalienable rights, encompassing almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of our 1986
Constitutional Commission in adopting the specific provisions on human rights and in
creating an independent commission to safeguard these rights? It may of value to look
back at the country's experience under the martial law regime which may have, in fact,
impelled the inclusions of those provisions in our fundamental law. Many voices have
been heard. Among those voices, aptly represented perhaps of the sentiments
expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an
advocate of civil liberties, who, in his paper, entitled "Present State of Human Rights in
the Philippines," 29 observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights
most of the human rights expressed in the International Covenant, these rights
became unavailable upon the proclamation of Martial Law on 21 September 1972.
Arbitrary action then became the rule. Individuals by the thousands became subject to
arrest upon suspicion, and were detained and held for indefinite periods, sometimes
for years, without charges, until ordered released by the Commander-in-Chief or this
representative. The right to petition for the redress of grievances became useless,
since group actions were forbidden. So were strikes. Press and other mass media
were subjected to censorship and short term licensing. Martial law brought with it the
suspension of the writ of habeas corpus, and judges lost independence and security of
tenure, except members of the Supreme Court. They were required to submit letters of
resignation and were dismissed upon the acceptance thereof. Torture to extort
28
confessions were practiced as declared by international bodies like Amnesty
International and the International Commission of Jurists.
Converging our attention to the records of the Constitutional Commission, we can see
the following discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity would also be curtailed.
So, it is important to delienate the parameters of its tasks so that the commission can
be most effective.
MR. BENGZON. That is precisely my difficulty because civil and political rights are
very broad. The Article on the Bill of Rights covers civil and political rights. Every single
right of an individual involves his civil right or his political right. So, where do we draw
the line?
MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of Human
Rights which addresses a number of articles on the right to life, the right against
torture, the right to fair and public hearing, and so on. These are very specific rights
that are considered enshrined in many international documents and legal instruments
as constituting civil and political rights, and these are precisely what we want to defend
here.
MR. BENGZON. So, would the commissioner say civil and political rights as defined in
the Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and economic
rights, and there are other violations of rights of citizens which can be addressed to the
proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings cases
which perhaps heretofore or at this moment are under the jurisdiction of the ordinary
investigative and prosecutorial agencies of the government. Am I correct?
MR. GARCIA. No. We have already mentioned earlier that we would like to define the
specific parameters which cover civil and political rights as covered by the international
standards governing the behavior of governments regarding the particular political and
civil rights of citizens, especially of political detainees or prisoners. This particular
aspect we have experienced during martial law which we would now like to safeguard.
MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are
really trying to say is, perhaps, at the proper time we could specify all those rights
stated in the Universal Declaration of Human Rights and defined as human rights.
Those are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of
Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of human rights, I would
like to state that in the past regime, everytime we invoke the violation of human rights,
the Marcos regime came out with the defense that, as a matter of fact, they had
defended the rights of people to decent living, food, decent housing and a life
consistent with human dignity.
So, I think we should really limit the definition of human rights to political rights. Is that
the sense of the committee, so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated points raised by
the previous speaker.
There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of prisoners and
the prevention of tortures; 3) fair and public trials; 4) cases of disappearances; 5)
salvagings and hamletting; and 6) other crimes committed against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia that we should, in
order to make the proposed Commission more effective, delimit as much as possible,
without prejudice to future expansion. The coverage of the concept and jurisdictional
area of the term "human rights". I was actually disturbed this morning when the
reference was made without qualification to the rights embodied in the universal
Declaration of Human Rights, although later on, this was qualified to refer to civil and
political rights contained therein.
If I remember correctly, Madam President, Commissioner Garcia, after mentioning the
Universal Declaration of Human Rights of 1948, mentioned or linked the concept of
human right with other human rights specified in other convention which I do not
remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of
1985?
MR. GUINGONA. I do not know, but the commissioner mentioned another.
MR. GARCIA. Madam President, the other one is the International Convention on Civil
and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a copy of the
Universal Declaration of Human Rights here, I do not have a copy of the other
29
covenant mentioned. It is quite possible that there are rights specified in that other
convention which may not be specified here. I was wondering whether it would be wise
to link our concept of human rights to general terms like "convention," rather than
specify the rights contained in the convention.
As far as the Universal Declaration of Human Rights is concerned, the Committee,
before the period of amendments, could specify to us which of these articles in the
Declaration will fall within the concept of civil and political rights, not for the purpose of
including these in the proposed constitutional article, but to give the sense of the
Commission as to what human rights would be included, without prejudice to
expansion later on, if the need arises. For example, there was no definite reply to the
question of Commissioner Regalado as to whether the right to marry would be
considered a civil or a social right. It is not a civil right?
MR. GARCIA. Madam President, I have to repeat the various specific civil and political
rights that we felt must be envisioned initially by this provision freedom from political
detention and arrest prevention of torture, right to fair and public trials, as well as
crimes involving disappearance, salvagings, hamlettings and collective violations. So,
it is limited to politically related crimes precisely to protect the civil and political rights of
a specific group of individuals, and therefore, we are not opening it up to all of the
definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the so-
called civil or political rights as contained in the Universal Declaration of Human
Rights.
MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I
was referring to an international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each and every specific article
therein, but only to those that pertain to the civil and politically related, as we
understand it in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the distinction between
civil and social rights.
MR. GARCIA. There are two international covenants: the International Covenant and
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The second covenant contains all the different rights-the rights of labor
to organize, the right to education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of the committee to
those that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of human rights, I
cannot stress more on how much we need a Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay and very few lawyers
will accept clients who do not pay. And so, they are the ones more abused and
oppressed. Another reason is, the cases involved are very delicate torture,
salvaging, picking up without any warrant of arrest, massacre and the persons who
are allegedly guilty are people in power like politicians, men in the military and big
shots. Therefore, this Human Rights Commission must be independent.
I would like very much to emphasize how much we need this commission, especially
for the little Filipino, the little individual who needs this kind of help and cannot get it.
And I think we should concentrate only on civil and political violations because if we
open this to land, housing and health, we will have no place to go again and we will not
receive any response. . . . 30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a
provision empowering the Commission on Human Rights to "investigate, on its own or
on complaint by any party, all forms of human rights violations involving civil and
political rights" (Sec. 1).
The term "civil rights," 31 has been defined as referring
(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense,
to all its inhabitants, and are not connected with the organization or administration of
the government. They include the rights of property, marriage, equal protection of the
laws, freedom of contract, etc. Or, as otherwise defined civil rights are rights
appertaining to a person by virtue of his citizenship in a state or community. Such term
may also refer, in its general sense, to rights capable of being enforced or redressed in
a civil action.
Also quite often mentioned are the guarantees against involuntary servitude, religious
persecution, unreasonable searches and seizures, and imprisonment for debt. 32
Political rights, 33 on the other hand, are said to refer to the right to participate, directly
or indirectly, in the establishment or administration of government, the right of suffrage,
the right to hold public office, the right of petition and, in general, the rights appurtenant
to citizenship vis-a-vis the management of government. 34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily
apparent that the delegates envisioned a Commission on Human Rights that would
focus its attention to the more severe cases of human rights violations. Delegate
Garcia, for instance, mentioned such areas as the "(1) protection of rights of political
detainees, (2) treatment of prisoners and the prevention of tortures, (3) fair and public
trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6) other crimes
committed against the religious." While the enumeration has not likely been meant to
have any preclusive effect, more than just expressing a statement of priority, it is,
nonetheless, significant for the tone it has set. In any event, the delegates did not
apparently take comfort in peremptorily making a conclusive delineation of the CHR's
scope of investigatorial jurisdiction. They have thus seen it fit to resolve, instead, that
"Congress may provide for other cases of violations of human rights that should fall
within the authority of the Commission, taking into account its recommendation." 35
In the particular case at hand, there is no cavil that what are sought to be demolished
are the stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by
private respondents on a land which is planned to be developed into a "People's Park".
More than that, the land adjoins the North EDSA of Quezon City which, this Court can
30
take judicial notice of, is a busy national highway. The consequent danger to life and The public respondent explains that this petition for prohibition filed by the petitioners
limb is not thus to be likewise simply ignored. It is indeed paradoxical that a right which has become moot and academic since the case before it (CHR Case No. 90-1580) has
is claimed to have been violated is one that cannot, in the first place, even be invoked, already been fully heard, and that the matter is merely awaiting final resolution. It is
if it is, in fact, extant. Be that as it may, looking at the standards hereinabove true that prohibition is a preventive remedy to restrain the doing of an act about to be
discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared done, and not intended to provide a remedy for an act already accomplished. 38 Here,
to conclude that the order for the demolition of the stalls, sari-sari stores and carinderia however, said Commission admittedly has yet to promulgate its resolution in CHR
of the private respondents can fall within the compartment of "human rights violations Case No. 90-1580. The instant petition has been intended, among other things, to also
involving civil and political rights" intended by the Constitution. prevent CHR from precisely doing that. 39
On its contempt powers, the CHR is constitutionally authorized to "adopt its WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on
operational guidelines and rules of procedure, and cite for contempt for violations Human Rights is hereby prohibited from further proceeding with CHR Case No.
thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its 90-1580 and from implementing the P500.00 fine for contempt. The temporary
authority in providing in its revised rules, its power "to cite or hold any person in direct restraining order heretofore issued by this Court is made permanent. No costs.
or indirect contempt, and to impose the appropriate penalties in accordance with the SO ORDERED.
procedure and sanctions provided for in the Rules of Court." That power to cite for
contempt, however, should be understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential to carry out its investigatorial Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon,
powers. To exemplify, the power to cite for contempt could be exercised against Bellosillo, Melo, Quiason and Puno, JJ., concur.
persons who refuse to cooperate with the said body, or who unduly withhold relevant
information, or who decline to honor summons, and the like, in pursuing its
investigative work. The "order to desist" (a semantic interplay for a restraining order) in
the instance before us, however, is not investigatorial in character but prescinds from
an adjudicative power that it does not possess. In Export Processing Zone Authority
vs. Commission on Human Rights, 36 the Court, speaking through Madame Justice
Carolina Grio-Aquino, explained:
The constitutional provision directing the CHR to "provide for preventive measures and
legal aid services to the underprivileged whose human rights have been violated or
need protection" may not be construed to confer jurisdiction on the Commission to
issue a restraining order or writ of injunction for, it that were the intention, the
Constitution would have expressly said so. "Jurisdiction is conferred only by the
Constitution or by law". It is never derived by implication.
Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary
injunction) which the CHR may seek from proper courts on behalf of the victims of
human rights violations. Not being a court of justice, the CHR itself has no jurisdiction
to issue the writ, for a writ of preliminary injunction may only be issued "by the judge of
any court in which the action is pending [within his district], or by a Justice of the Court
of Appeals, or of the Supreme Court. . . . A writ of preliminary injunction is an ancillary
remedy. It is available only in a pending principal action, for the preservation or
protection of the rights and interests of a party thereto, and for no other
purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for appropriate action, its
findings and recommendations to any appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of P200,000.00 by way of
financial aid to the vendors affected by the demolition is not an appropriate issue in the
instant petition. Not only is there lack of locus standi on the part of the petitioners to
question the disbursement but, more importantly, the matter lies with the appropriate
administrative agencies concerned to initially consider.

31
[G.R. No. 117472. February 7, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO,
accused-appellant.
RESOLUTION
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case affirming the
conviction of the accused-appellant for the crime of raping his ten-year old daughter.
The crime having been committed sometime in April, 1994, during which time Republic
Act (R.A.) No. 7659, commonly known as the Death Penalty Law, was already in
effect, accused-appellant was inevitably meted out the supreme penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for Reconsideration which
focused on the sinister motive of the victim's grandmother that precipitated the filing of
the alleged false accusation of rape against the accused. We find no substantial
arguments on the said motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense counsel, Atty. Julian R.
Vitug, and retained the services of the Anti-Death Penalty Task Force of the Free Legal
Assistance Group of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for Reconsideration
prepared by the FLAG on behalf of accused-appellant. The motion raises the following
grounds for the reversal of the death sentence:
"[1] Accused-appellant should not have been prosecuted since the pardon by the
offended party and her mother before the filing of the complaint acted as a bar to his
criminal prosecution.
[2] The lack of a definite allegation of the date of the commission of the offense in
the Complaint and throughout trial prevented the accused-appellant from preparing an
adequate defense.
[3] The guilt of the accused was not proved beyond a reasonable doubt.
[4] The Honorable Court erred in finding that the accused-appellant was the father
or stepfather of the complainant and in affirming the sentence of death against him on
this basis.
[5] The trial court denied the accused-appellant of due process and manifested bias
in the conduct of the trial.
[6] The accused-appellant was denied his constitutional right to effective assistance
of counsel and to due process, due to the incompetence of counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is unconstitutional per se:
a. For crimes where no death results from the offense, the death penalty is a
severe and excessive penalty in violation of Article III, Sec. 19 ( I ) of the 1987
Constitution.
b. The death penalty is cruel and unusual punishment in violation of Article III,
Sec. 11 of the 1987 Constitution."
In sum, the Supplemental Motion for Reconsideration raises three (3) main issues: (1)
mixed factual and legal matters relating to the trial proceedings and findings; (2)
alleged incompetence of accused-appellant's former counsel; and (3) purely legal
question of the constitutionality of R.A. No. 7659.
I.
It is a rudimentary principle of law that matters neither alleged in the pleadings nor
raised during the proceedings below cannot be ventilated for the first time on appeal
before the Supreme Court. Moreover, as we have stated in our Resolution in Manila
Bay Club Corporation v. Court of Appeals:[1]
"If well-recognized jurisprudence precludes raising an issue only for the first time on
appeal proper, with more reason should such issue be disallowed or disregarded when
initially raised only in a motion for reconsideration of the decision of the appellate
court."
It is to be remembered that during the proceedings of the rape case against the
accused-appellant before the sala of then presiding Judge xxx, the defense attempted
to prove that:
a) the rape case was motivated by greed, hence, a mere concoction of the alleged
victim's maternal grandmother;
b) the accused is not the real father of the complainant;
c) the size of the penis of the accused cannot have possibly penetrated the alleged
victim's private part; and
d) the accused was in xxx during the time of the alleged rape.
In his Brief before us when the rape case was elevated for automatic review, the
accused-appellant reiterated as grounds for exculpation:
a) the ill-motive of the victim's maternal grandmother in prompting her grandchild to
file the rape case;
b) the defense of denial relative to the size of his penis which could not have
caused the healed hymenal lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel of the accused-
appellant reveals that in their messianic appeal for a reversal of our judgment of
conviction, we are asked to consider for the first time, by way of a Supplemental
Motion for Reconsideration, the following matters:
a) the affidavit of desistance written by the victim which acted as a bar to the
criminal prosecution for rape against the accused-appellant;
b) the vagueness attributed to the date of the commission of the offense in the
Complaint which deprived the accused-appellant from adequately defending himself;
c) the failure of this Court to clearly establish the qualifying circumstance that
placed the accused-appellant within the coverage of the Death Penalty Law;
d) the denial of due process and the manifest bias exhibited by the trial court during
the trial of the rape case.
Apparently, after a careful scrutiny of the foregoing points for reconsideration, the only
legitimate issue that We can tackle relates to the Affidavit of Desistance which touches
32
on the lack of jurisdiction of the trial court to have proceeded with the prosecution of
the accused-appellant considering that the issue of jurisdiction over the subject matter
may be raised at any time, even during appeal.[2]
It must be stressed that during the trial proceedings of the rape case against the
accused-appellant, it appeared that despite the admission made by the victim herself
in open court that she had signed an Affidavit of Desistance, she, nevertheless,
"strongly pointed out that she is not withdrawing the charge against the accused
because the latter might do the same sexual assaults to other women."[3] Thus, this is
one occasion where an affidavit of desistance must be regarded with disfavor
inasmuch as the victim, in her tender age, manifested in court that she was pursuing
the rape charges against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare,[4] that:
"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also cited by the
accused-appellant, an affidavit of desistance is merely an additional ground to buttress
the accused's defenses, not the sole consideration that can result in acquittal. There
must be other circumstances which, when coupled with the retraction or desistance,
create doubts as to the truth of the testimony given by the witnesses at the trial and
accepted by the judge."[5]
In the case at bar, all that the accused-appellant offered as defenses mainly consisted
of denial and alibi which cannot outweigh the positive identification and convincing
testimonies given by the prosecution. Hence, the affidavit of desistance, which the
victim herself intended to disregard as earlier discussed, must have no bearing on the
criminal prosecution against the accused-appellant, particularly on the trial court's
jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or mistakes of his counsel.
[6] One of the recognized exceptions to this rule is gross incompetency in a way that
the defendant is highly prejudiced and prevented, in effect, from having his day in court
to defend himself.[7]
In the instant case, we believe that the former counsel of the accused-appellant to
whom the FLAG lawyers now impute incompetency had amply exercised the required
ordinary diligence or that reasonable decree of care and skill expected of him relative
to his client's defense. As the rape case was being tried on the merits, Atty. Vitug, from
the time he was assigned to handle the case, dutifully attended the hearings thereof.
Moreover, he had seasonably submitted the Accused-Appellant's Brief and the Motion
for Reconsideration of our June 25, 1996 Decision with extensive discussion in support
of his line of defense. There is no indication of gross incompetency that could have
resulted from a failure to present any argument or any witness to defend his client.
Neither has he acted haphazardly in the preparation of his case against the
prosecution evidence. The main reason for his failure to exculpate his client, the
accused-appellant, is the overwhelming evidence of the prosecution. The alleged
errors committed by the previous counsel as enumerated by the new counsel could not
have overturned the judgment of conviction against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition of death as punishment for
violation of law or custom, religious or secular, is an ancient practice. We do know that
our forefathers killed to avenge themselves and their kin and that initially, the criminal
law was used to compensate for a wrong done to a private party or his family, not to
punish in the name of the state.
The dawning of civilization brought with it both the increasing sensitization throughout
the later generations against past barbarity and the institutionalization of state power
under the rule of law. Today every man or woman is both an individual person with
inherent human rights recognized and protected by the state and a citizen with the
duty to serve the common weal and defend and preserve society.
One of the indispensable powers of the state is the power to secure society against
threatened and actual evil. Pursuant to this, the legislative arm of government enacts
criminal laws that define and punish illegal acts that may be committed by its own
subjects, the executive agencies enforce these laws, and the judiciary tries and
sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped debating on the causes of
criminal behavior and the purposes of criminal punishment, our criminal laws have
been perceived as relatively stable and functional since the enforcement of the
Revised Penal Code on January 1, 1932, this notwithstanding occasional opposition to
the death penalty provisions therein. The Revised Penal Code, as it was originally
promulgated, provided for the death penalty in specified crimes under specific
circumstances. As early as 1886, though, capital punishment had entered our legal
system through the old Penal Code, which was a modified version of the Spanish
Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a constitutional question
of whether or not the death penalty is a cruel, unjust, excessive or unusual punishment
in violation of the constitutional proscription against cruel and unusual punishments.
We unchangingly answered this question in the negative in the cases of Harden v.
Director of Prison,[8] People v. Limaco,[9] People v. Camano,[10] People v. Puda[11]
and People v. Marcos,[12] In Harden, we ruled:
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte
Kemmler, 136 U.S., 436, the United States Supreme Court said that 'punishments are
cruel when they involve torture or a lingering death, but the punishment of death is not
cruel, within the meaning of that word as used in the constitution. It implies there
something inhuman and barbarous, something more than the mere extinguishment of
life.'"[13]
Consequently, we have time and again emphasized that our courts are not the fora for
a protracted debate on the morality or propriety of the death sentence where the law
itself provides therefor in specific and well-defined criminal acts. Thus we had ruled in
the 1951 case of Limacothat:
"x x x there are quite a number of people who honestly believe that the supreme
penalty is either morally wrong or unwise or ineffective. However, as long as that
penalty remains in the statute books, and as long as our criminal law provides for its
imposition in certain cases, it is the duty of judicial officers to respect and apply the law
regardless of their private opinions,"[14]
and this we have reiterated in the 1995 case of People v. Veneracion.[15]
33
Under the Revised Penal Code, death is the penalty for the crimes of treason,
correspondence with the enemy during times of war, qualified piracy, parricide, murder,
infanticide, kidnapping, rape with homicide or with the use of deadly weapon or by two
or more persons resulting in insanity, robbery with homicide, and arson resulting in
death. The list of capital offenses lengthened as the legislature responded to the
emergencies of the times. In 1941, Commonwealth Act (C.A.) No. 616 added
espionage to the list. In the 1950s, at the height of the Huk rebellion, the government
enacted Republic Act (R.A.) No. 1700, otherwise known as the Anti-Subversion Law,
which carried the death penalty for leaders of the rebellion. From 1971 to 1972, more
capital offenses were created by more laws, among them, the Anti-Hijacking Law, the
Dangerous Drugs Act, and the Anti-Carnapping Law. During martial law, Presidential
Decree (P.D.) No. 1866 was enacted penalizing with death, among others, crimes
involving homicide committed with an unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos regime and led to
the nullification of the 1973 Constitution, a Constitutional Commission was convened
following appointments thereto by Corazon Aquino who was catapulted to power by
the people.
Tasked with formulating a charter that echoes the new found freedom of a rejuvenated
people, the Constitutional Commissioners grouped themselves into working
committees among which is the Bill of Rights Committee with Jose B. Laurel, Jr. As
Chairman and Father Joaquin G. Bernas, S.J., as Vice-Chairman.
On July 17, 1986, Father Bernas presented the committee draft of the proposed bill of
rights to the rest of the commission. What is now Article III, Section 19 (1) of the 1987
Constitution was first denominated as Section 22 and was originally worded as follows:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment, or
the death penalty inflicted. Death penalty already imposed shall be commuted to
reclusion perpetua."
Father Bernas explained that the foregoing provision was the result of a consensus
among the members of the Bill of Rights Committee that the death penalty should be
abolished. Having agreed to abolish the death penalty, they proceeded to deliberate
on how the abolition was to be done -- whether the abolition should be done by the
Constitution or by the legislature -- and the majority voted for a constitutional abolition
of the death penalty. Father Bernas explained:
"x x x [T]here was a division in the Committee not on whether the death penalty should
be abolished or not, but rather on whether the abolition should be done by the
Constitution -- in which case it cannot be restored by the legislature -- or left to the
legislature. The majority voted for the constitutional abolition of the death penalty. And
the reason is that capital punishment is inhuman for the convict and his family who are
traumatized by the waiting, even if it is never carried out. There is no evidence that the
death penalty deterred deadly criminals, hence, life should not be destroyed just in the
hope that other lives might be saved. Assuming mastery over the life of another man
is just too presumptuous for any man. The fact that the death penalty as an institution
has been there from time immemorial should not deter us from reviewing it. Human
life is more valuable than an institution intended precisely to serve human life. So,
basically, this is the summary of the reasons which were presented in support of the
constitutional abolition of the death penalty".[16]
The original wording of Article III, Section 19 (1), however, did not survive the debate
that it instigated. Commissioner Napoleon G. Rama first pointed out that "never in our
history has there been a higher incidence of crime" and that "criminality was at its
zenith during the last decade".[17] Ultimately, the dissent defined itself to an
unwillingness to absolutely excise the death penalty from our legal system and leave
society helpless in the face of a future upsurge of crimes or other similar emergencies.
As Commissioner Rustico F. de los Reyes, Jr. suggested, "although we abolish the
death penalty in the Constitution, we should afford some amount of flexibility to future
legislation,"[18] and his concern was amplified by the interpellatory remarks of
Commissioner Lugum L. Commissioner and now Associate Justice Florenz Regalado,
Commissioner Crispino M. de Castro, Commissioner Ambrosio B. Padilla,
Commissioner Christian Monsod, Commissioner Francisco A. Rodrigo, and
Commissioner Ricardo Romulo. Commissioner Padilla put it succinctly in the
following exchange with Commissioner Teodoro C. Bacani:
"BISHOP BACANI. x x x At present, they explicitly make it clear that the church has
never condemned the right of the state to inflict capital punishment.
MR. PADILLA. x x x So it is granted that the state is not deprived of the right even
from a moral standpoint of imposing or prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point of view, that
right of the state is not forbidden.
MR. PADILLA. In fact x x x we have to accept that the state has the delegated
authority from the Creator to impose the death penalty under certain circumstances.
BISHOP BACANI. The state has the delegation from God for it to do what is needed
for the sake of the common good, but the issue at stake is whether or not under the
present circumstances that will be for the common good.
MR. PADILLA. But the delegated power of the state cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by God at a particular stage in
history, but it is not clear whether or not that delegation is forever under all
circumstances
MR. PADILLA. So this matter should be left to the legislature to determine, under
certain specified conditions or circumstances, whether the retention of the death
penalty or its abolition would be for the common good. I do not believe this
Commission can a priori, and as was remarked within a few days or even a month,
determine a positive provision in the Constitution that would prohibit even the
legislature to prescribe the death penalty for the most heinous crimes, the most
grievous offenses attended by many qualifying and aggravating circumstances."[19]
What followed, thus, were proposed amendments to the beleaguered provision. The
move to add the phrase, "unless for compelling reasons involving heinous crimes, the
national assembly provides for the death penalty," came from Commissioners Monsod,
Jose E. Suarez and de los Reyes. Commissioner Rodrigo, however, expressed
reservations even as regards the proposed amendment. He said:
"x x x [T]he issue here is whether or not we should provide this matter in the
Constitution or leave it to the discretion of our legislature. Arguments pro and con
34
have been given x x x. But my stand is, we should leave this to the discretion of the
legislature.
The proposed amendment is halfhearted. It is awkward because we will, in effect,
repeal by our Constitution a piece of legislation and after repealing this piece of
legislation, tell the legislature that we have repealed the law and that the legislature
can go ahead and enact it again. I think this is not worthy of a constitutional body like
ours. If we will leave the matter of the death penalty to the legislature, let us leave it
completely to the discretion of the legislature, but let us not have this half-baked
provision. We have many provisions in the Revised Penal Code imposing the death
penalty. We will now revoke or repeal these pieces of legislation by means of the
Constitution, but at the same time say that it is up to the legislature to impose this
again.
x x x The temper and condition of the times change x x x and so we, I think we should
leave this matter to the legislature to enact statutes depending on the changing needs
of the times. Let us entrust this completely to the legislature composed of
representatives elected by the people.
I do not say that we are not competent. But we have to admit the fact that we are not
elected by the people and if we are going to entrust this to the legislature, let us not be
half-baked nor half-hearted about it. Let us entrust it to the legislature 100
percent."[20]
Nonetheless, the proposed amendment was approved with twenty-three (23)
commissioners voting in favor of the amendment and twelve (12) voting against it,
followed by more revisions, hence the present wording of Article III, Section 19 (1) of
the 1987 Constitution in the following tenor:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion perpetua."
The implications of the foregoing provision on the effectivity of the death penalty
provisions in the Revised Penal Code and certain special criminal laws and the state of
the scale of penalties thereunder, were tremendous.
The immediate problem pertained to the applicable penalty for what used to be capital
crimes. In People v. Gavarra,[21] we stated that "in view of the abolition of the death
penalty under Section 19, Article III of the 1987 Constitution, the penalty that may be
imposed for murder isreclusion temporal in its maximum period to reclusion
perpetua"[22] thereby eliminating death as the original maximum period. The
constitutional abolition of the death penalty, it seemed, limited the penalty for murder to
only the remaining periods, to wit, the minimum and the medium, which we then, in
People v. Masangkay,[23] People v. Atencio[24] and People v. Intino[25] divided into
three new periods, to wit, the lower half of reclusion temporal maximum as the
minimum; the upper half of reclusion temporal maximum as the medium; and reclusion
perpetua as the maximum, in keeping with the three-grade scheme under the Revised
Penal Code. In People v. Munoz,[26] however, we reconsidered these aforecited
cases and after extended discussion, we concluded that the doctrine announced
therein did not reflect the intention of the framers. The crux of the issue was whether
or not Article III, Section 19 (1) absolutely abolished the death penalty, for if it did, then,
the aforementioned new three-grade penalty should replace the old one where the
death penalty constituted the maximum period. But if no total abolition can be read
from said constitutional provision and the death penalty is only suspended, it cannot as
yet be negated by the institution of a new three-grade penalty premised on the total
inexistence of the death penalty in our statute books. We thus ruled in Munoz:
"The advocates of the Masangkay ruling argue that the Constitution abolished the
death penalty and thereby limited the penalty for murder to the remaining periods, to
wit, the minimum and the medium. These should now be divided into three new
periods in keeping with the three-grade scheme intended by the legislature. Those
who disagree feel that Article III, Section 19 (1) merely prohibits the imposition of the
death penalty and has not, by reducing it toreclusion perpetua, also correspondingly
reduced the remaining penalties. These should be maintained intact.
A reading of Section 19 (1) of Article III will readily show that there is really nothing
therein which expressly declares the abolition of the death penalty. The provision
merely says that the death penalty shall not be imposed unless for compelling reasons
involving heinous crimes the Congress hereafter provides for it and, if already
imposed, shall be reduced to reclusion perpetua. The language, while rather
awkward, is still plain enough".[27]
Nothing is more defining of the true content of Article III, Section 19 (1) of the 1987
Constitution than the form in which the legislature took the initiative in re-imposing the
death penalty.
The Senate never doubted its power as vested in it by the constitution, to enact
legislation re-imposing the death penalty for compelling reasons involving heinous
crimes. Pursuant to this constitutional mandate, the Senate proceeded to a two-step
process consisting of: first, the decision, as a matter of policy, to re-impose the death
penalty or not; and second, the vote to pass on the third reading the bill re-imposing
the death penalty for compelling reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of arguments for and against
capital punishment, the Members of the Senate voted on the policy issue of death
penalty. The vote was explained, thus:
"SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body suspended the
Rules of the Senate.
Thereafter, upon motion of Senator Romulo, there being no objection, the Chair
directed that a nominal voting be conducted on the policy issue of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate would vote on this
policy question, Senator Romulo stated that a vote of Yes would mean a vote in favor
of death as a penalty to be reincorporated in the scale of penalties as provided in the
Revised Penal Code, and a vote of No would be a vote against the reincorporation of
death penalty in the scale of penalties in the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx
35
The Chair explained that it was agreed upon that the Body would first decide the
question whether or not death penalty should be reimposed, and thereafter, a seven-
man committee would be formed to draft the compromise bill in accordance with the
result of the voting. If the Body decides in favor of the death penalty, the Chair said
that the committee would specify the crimes on which death penalty would be
imposed. It affirmed that a vote of Yes in the nominal voting would mean a vote in
favor of death penalty on at least one crime, and that certain refinements on how the
penalty would be imposed would be left to the discretion of the seven-man committee.
xxx
INQUIRY OF SENATOR TAADA
In reply to Senator Taada's query, the Chair affirmed that even if a senator would vote
'yes' on the basic policy issue, he could still vote 'no' on the imposition of the death
penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the basic policy issue of
whether or not the death penalty would be included in the scale of penalties found in
Article 27 of the Revised Penal Code, so that if it is voted down, the Body would
discontinue discussing Senate Bill No. 891 pursuant to the Rules, but if approved, a
special committee, as agreed upon in the caucus, is going to be appointed and
whatever course it will take will depend upon the mandate given to it by the Body later
on.
The Chair affirmed Senator Tolentino's observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not death as a penalty will
be reincorporated in the scale of penalties provided by the Revised Penal Code.
However, he pointed out that if the Body decides in favor of death penalty, the Body
would still have to address two issues: 1) Is the crime for which the death penalty is
supposed to be imposed heinous pursuant to the constitutional mandate? 2) And, if so,
is there a compelling reason to impose the death penalty for it? The death penalty, he
stressed, cannot be imposed simply because the crime is heinous."[28]
With seventeen (17) affirmative votes and seven (7) negative votes and no abstention,
the Chair declared that the Senate has voted to re-incorporate death as a penalty in
the scale of penalties as provided in the Revised Penal Code. A nine-person
committee was subsequently created to draft the compromise bill pursuant to said
vote. The mandate of the committee was to retain the death penalty, while the main
debate in the committee would be the determination of the crimes to be considered
heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special Committee on
the Death Penalty, delivered his Sponsorship Speech. He began with an explanation
as to why the Senate Bill No. 891 re-imposes the death penalty by amending the
Revised Penal Code and other special penal laws and includes provisions that do not
define or punish crimes but serve purposes allied to the reimposition of the death
penalty. Senator Tolentino stated:
x x x [W]hen the Senate approved the policy of reimposing the death penalty on
heinous crimes and delegated to the Special Committee the work of drafting a bill, a
compromise bill that would be the subject for future deliberations of this Body, the
Committee had to consider that the death penalty was imposed originally in the
Revised Penal Code.
So, when the Constitution was approved in order to do away with the death penalty,
unless Congress should, for compelling reasons reimpose that penalty on heinous
crimes, it was obvious that it was the Revised Penal Code that was affected by that
provision of the Constitution. The death penalty, as provided in the Revised Penal
Code, would be considered as having been repealed -- all provisions on the death
penalty would be considered as having been repealed by the Constitution, until
Congress should, for compelling reasons, reimpose such penalty on heinous crimes.
Therefore, it was not only one article but many articles of the Revised Penal Code that
were actually affected by the Constitution.
And it is in consideration of this consequence of the constitutional provision that our
Special Committee had to consider the Revised Penal Code itself in making this
compromise bill or text of the bill. That is why, in the proposed draft now under
consideration which we are sponsoring, the specific provisions of the Revised Penal
Code are actually either reenacted or amended or both. Because by the effect of the
Constitution, some provisions were totally repealed, and they had to be reenacted so
that the provisions could be retained. And some of them had to be amended because
the Committee thought that amendments were proper."[29]
In response to a query by Senator Gloria Macapagal-Arroyo as to whether or not it
would have been better if the Senate were to enact a special law which merely defined
and imposed the death penalty for heinous crimes, Senator Tolentino explicated, thus:
"x x x [T]hat may be a way presenting the bill. But we must bear in mind that the
death penalty is imposed in the Revised Penal Code. Therefore, when the
Constitution abolished the death penalty, it actually was amending the Revised Penal
Code to such an extent that the Constitution provides that where the death penalty has
already been imposed but not yet carried out, then the penalty shall be reclusion
perpetua, that is the penalty in the Revised Penal Code. So we thought that it would be
best to just amend the provisions of the Revised Penal Code, restoring the death
penalty for some crimes that may be considered as heinous. That is why the bill is in
this form amending the provisions of the Revised Penal Code.
Of course, if some people want to present a special bill . . . the whole trouble is, when
a special bill is presented and we want to punish in the special bill the case of murder,
for instance, we will have to reproduce the provisions of the Revised Penal Code on
murder in order to define the crime for which the death penalty shall be imposed. Or if
we want to impose the death penalty in the case of kidnapping which is punished in
the Revised Penal Code, we will do the same -- merely reproduce. Why will we do
that? So we just followed the simpler method of keeping the definition of the crime as
the same and merely adding some aggravating circumstances and reimposing the
death penalty in these offenses originally punished in the Revised Penal Code."[30]
From March 17, 1993, when the death penalty bill was presented for discussion until
August 16, 1993, the Members of the Senate debated on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who kept prodding the
sponsors of the bill to state the compelling reason for each and every crime for which
36
the supreme penalty of death was sought. Zeroing in on the statement in the
preamble of the death penalty bill that the same is warranted in the face of "the
alarming upsurge of [heinous] crimes", Senator Lina demanded for solid statistics
showing that in the case of each and every crime in the death penalty bill, there was a
significantly higher incidence of each crime after the suspension of the death penalty
on February 2, 1987 when the 1987 Constitution was ratified by the majority of the
Filipino people, than before such ratification.[31]Inasmuch as the re-impositionists
could not satisfy the abolitionists with sufficient statistical data for the latter to accept
the alarming upsurge of heinous crimes as a compelling reason justifying the
reimposition of the death penalty, Senator Lina concluded that there were, in fact, no
compelling reasons therefor. In the alternative, Senator Lina argued that the
compelling reason required by the constitution was that "the State has done everything
in its command so that it can be justified to use an inhuman punishment called death
penalty".[32] The problem, Senator Lina emphasized, was that even the re-
impositionists admit that there were still numerous reforms in the criminal justice
system that may and must be put in place, and so clearly, the recourse to the
enactment of a death penalty bill was not in the nature of a last resort, hence,
unconstitutional in the absence of compelling reasons. As an initial reaction to Senator
Lina's contentions, Senator Tolentino explained that the statement in the preamble is a
general one and refers to all the crimes covered by the bill and not to specific crimes.
He added that one crime may not have the same degree of increase in incidence as
the other crimes and that the public demand to impose the death penalty is enough
compelling reason.[33]
Equally fit to the task was Senator Wigberto Taada to whom the battle lines were
clearly drawn. He put to issue two things: first, the definition of "heinous crimes" as
provided for in the death penalty bill; and second, the statement of compelling reasons
for each and every capital crime. His interpellation of Senator Tolentino clearly
showed his objections to the bill:
"Senator Taada. x x x But what would make crimes heinous, Mr. President? Are
crimes heinous by their nature or elements as they are described in the bill or are
crimes heinous because they are punished by death, as bribery and malversation are
proposed to be punished in the bill?
Senator Tolentino. They are heinous by their nature, Mr. President, but that is not
supposed to be the exclusive criterion. The nature of the offense is the most important
element in considering it heinous but, at the same time, we should consider the
relation of the offense to society in order to have a complete idea of the heinous nature
of these offenses.
In the case of malversation or bribery, for instance, these offenses by themselves
connected with the effect upon society and the government have made them fall under
the classification of heinous crimes. The compelling reason for imposing the death
penalty is when the offenses of malversation and bribery becomes so grave and so
serious as indicated in the substitute bill itself, then there is a compelling reason for the
death penalty.
Senator Taada. With respect to the compelling reasons, Mr. President, does the
Gentleman believe that these compelling reasons, which would call for the
reimposition of the death penalty, should be separately, distinctly and clearly stated for
each crime so that it will be very clear to one and all that not only are these crimes
heinous but also one can see the compelling reasons for the reimposition of the death
penalty therefor?
Senator Tolentino. Mr. President, that matter was actually considered by the
Committee. But the decision of the Committee was to avoid stating the compelling
reason for each and every offense that is included in the substitute measure. That is
why in the preamble, general statements were made to show these compelling
reasons. And that, we believe, included in the bill, when converted into law, would be
sufficient notice as to what were considered compelling reasons by the Congress, in
providing the death penalty for these different offenses.
If a matter like this is questioned before the Supreme Court, I would suppose that with
the preamble already in general terms, the Supreme Court would feel that it was the
sense of Congress that this preamble would be applicable to each and every offense
described or punishable in the measure.
So we felt that it was not necessary to repeat these compelling reasons for each and
every offense.
Senator Taada. Mr. President, I am thinking about the constitutional limitations upon
the power of Congress to enact criminal legislation, especially the provisions on the Bill
of Rights, particularly the one which says that no person shall be held to answer for a
criminal offense without due process of law.
Can we not say that under this provision, it is required that the compelling reasons be
so stated in the bill so that the bill, when it becomes a law, will clearly define the acts
and the omissions punished as crimes?
Senator Tolentino. Mr. President, I believe that in itself, as substantive law, this is
sufficient. The question of whether there is due process will more or less be a matter
of procedure in the compliance with the requirements of the Constitution with respect
to due process itself which is a separate matter from the substantive law as to the
definition and penalty for crimes.
Senator Taada. Under the Constitution, Mr. President, it appears that the reimposition
of the death penalty is subject to three conditions and these are:
1. Congress should so provide such reimposition of the death penalty;
2. There are compelling reasons; and
3. These involve heinous crimes.
Under these provision of the Constitution, paragraph 1, Section 13, does the
distinguished Gentleman not feel that Congress is bound to state clearly the
compelling reasons for the reimposition of the death penalty for each crime, as well as
the elements that make each of the crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a matter of opinion already. I believe that
whether we state the compelling reasons or not, whether we state why a certain
offense is heinous, is not very important. If the question is raised in the Supreme
Court, it is not what we say in the bill that will be controlling but what the Supreme
Court will fell as a sufficient compelling reason or as to the heinous nature whether the
crime is heinous or not. The accused can certainly raise the matter of constitutionality
but it will not go into the matter of due process. It will go into the very power of
Congress to enact a bill imposing the death penalty. So that would be entirely
separate from the matter of due process." [34]
37
Senator Francisco Tatad, on his part, pointed out that the death penalty bill violated our
international commitment in support of the worldwide abolition of capital punishment,
the Philippines being a signatory to the International Covenant on Civil and Political
Rights and its Second Optional Protocol. Senator Ernesto Herrera clarified, however,
that in the United Nations, subject matters are submitted to the different committees
which vote on them for consideration in the plenary session. He stressed that unless
approved in the plenary session, a declaration would have no binding effect on
signatory countries. In this respect, the Philippines cannot be deemed irrevocably
bound by said covenant and protocol considering that these agreements have reached
only the committee level.[35]
After the protracted debate, the Members of the Senate voted on Senate Bill No. 891
on third reading. With seventeen (17) affirmative votes, four (4) negative votes, and
one abstention, the death penalty bill was approved on third reading on August 16,
1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on August 16, 1993
was a vindication of, the House of Representatives. The House had, in the Eight
Congress, earlier approved on third reading House Bill No. 295 on the restoration of
the death penalty for certain heinous crimes. The House was in effect rebuffed by the
Senate when the Senate killed House Bill No. 295 along with other bills coming from
the House. House Bill No. 295 was resurrected during the Ninth Congress in the form
of House Bill No. 62 which was introduced by twenty one (21) Members of the House
of Representatives on October 27, 1992. House Bill No. 62 was a merger of House
Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632
authored by various Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably essayed
the constitutional vesting in Congress of the power to re-impose the death penalty for
compelling reasons invoking heinous crimes as well as the nature of this constitutional
pre-requisite to the exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote:
'Neither shall death penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress shall thereafter provide for it . . .'
The phrase 'unless, for compelling reasons involving heinous crimes, the Congress
shall thereafter provide for it was introduced as an amendment by then Comm.
Christian Monsod.
The import of this amendment is unmistakable. By this amendment, the death penalty
was not completely abolished by the 1987 Constitution. Rather, it merely suspended
the death penalty and gave Congress the discretion to review it at the propitious time.
Arguing for the inclusion of said amendment in the fine provision, Comm. Ricardo
Romulo said, and I quote:
"'The people should have the final say on the subject, because, at some future time,
the people might want to restore death penalty through initiative and referendum.
Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages. Therefore, it is entirely possible
in the future that circumstances may arise which we should not preclude today.
xxx xxx
xxx
I believe that [there] are enough compelling reasons that merit the reimposition of the
capital punishment. The violent manner and the viciousness in which crimes are now
committed with alarming regularity, show very clearly a patent disregard of the law and
a mockery of public peace and order.
In the public gallery section today are the relatives of the victims of heinous crimes the
Hultmans, the Maguans, the Vizcondes, the Castanoses, and many more, and they
are all crying for justice. We ought to listen to them because their lives, their hopes,
their dreams, their future have fallen asunder by the cruel and vicious criminality of a
few who put their selfish interest above that of society.
Heinous crime is an act or series of acts which, by the flagrantly violent manner in
which the same was committed or by the reason of its inherent viciousness, shows a
patent disregard and mockery of the law, public peace and order, or public morals. It is
an offense whose essential and inherent viciousness and atrocity are repugnant and
outrageous to a civilized society and hence, shock the moral self of a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two lovely daughters,
will stand in the people's memory for many long years as the epitome of viciousness
and atrocity that are repugnant to civilized society.
The senseless murder of Eldon Maguan, and up-and-coming young business
executive, was and still is an outrage that shocks the moral self of our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-old high school
student who dreamt of becoming a commercial model someday, at the hands of a
crazed man was so repulsive, so brutal that it offends the sensibilities of Christians and
non-Christians alike
The cold-blooded double murder of Cochise Bernabe and Beebom Castanos, the
lovely and promising couple from the University of the Philippines, is eternally lodged
in the recesses of our minds and still makes our stomach turn in utter disgust.
xxx xxx
xxx
The seriousness of the situation is such that if no radical action is taken by this body in
restoring death penalty as a positive response to the overwhelming clamor of the
people, then, as Professor Esteban Bautista of the Philippine Law Center said, and I
quote:
'When people begin to believe that organized society is unwilling or unable to impose
upon criminal offenders the punishment they deserve, there are sown the seeds of
anarchy of self-help, of vigilante justice and lynch law. The people will take the law
upon their hands and exact vengeance in the nature of personal vendetta.'
It is for this reason, Mr. Speaker, that I stand here and support House Bill No. 62.
As duly elected Representatives of our people, collectively, we ought to listen to our
constituents and heed their plea a plea for life, liberty and pursuit of their happiness
under a regime of justice and democracy, and without threat that their loves ones will
be kidnapped, raped or butchered.
38
But if such a misfortune befalls them, there is the law they could rely on for justice. A
law that will exact retribution for the victims. A law that will deter future animalistic
behavior of the criminal who take their selfish interest over and above that of society.
A law that will deal a deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all that we hold dear
and sacred, let us restore the death penalty."[36]
A studious comparison of the legislative proceedings in the Senate and in the House of
Representatives reveals that, while both Chambers were not wanting of oppositors to
the death penalty, the Lower House seemed less quarrelsome about the form of the
death penalty bill as a special law specifying certain heinous crimes without regard to
the provisions of the Revised Penal Code and more unified in the perception of what
crimes are heinous and that the fact of their very heinousness involves the compulsion
and the imperative to suppress, if not completely eradicate, their occurrence. Be it the
foregoing general statement of Representative Sanchez or the following details of the
nature of the heinous crimes enumerated in House Bill No. 62 by Representative
Miguel L. Romero of Negros Oriental, there was clearly, among the hundred or so re-
impositionists in the Lower House, no doubt as to their cause:
"My friends, this bill provides for the imposition of the death penalty not only for the
importation, manufacture and sale of dangerous drugs, but also for other heinous
crimes such as reason; parricide; murder; kidnapping; robbery; rape as defined by the
Revised Penal Code with or without additionally defined circumstances; plunder, as
defined in R.A. 7080; piracy, as defined under Section 2 of PD 532; carnapping, as
defined in Section 2 of RA 6539, when the owner, driver or occupant is killed; hijacking,
as defined in xxx RA 6235; and arson resulting in the death of any occupants.
All these crimes have a common denominator which qualifies them to the level of
heinous crimes. A heinous crime is one which, by reason of its inherent or manifest
wickedness, viciousness, atrocity or perversity, is repugnant and outrageous to the
common standards of decency and morality in a just and civilized society.
For instance, the crime of treason is defined as a breach of allegiance to a
government, committed by a person who owes allegiance to it (U.S. v. Abad 1 Phil.
437). By the 'allegiance' is meant the obligation of fidelity and obedience which
individuals owe to the government under which they live or to their sovereign in return
for the protection which they receive (52 Am Jur 797).
In kidnapping, the though alone of one's loved one being held against his or her own
will in some unidentified xxx house by a group of scoundrels who are strangers is
enough terrify and send shivers of fear through the spine of any person, even
scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson, what is being
punished by death is the fact that the perpetrator, at the time of the commission of the
crime, thinks nothing of the other crime he commits and sees it merely as a form of
self-amusement. When a homicide is committed by reason of the robbery, the culprits
are perceived as willing to take human life in exchange for money or other personal
property.
In the crime of rape, not only do we speak of the pain and agony of the parents over
the personal shock and suffering of their child but the stigma of the traumatic and
degrading incident which has shattered the victim's life and permanently destroyed her
reputation, not to mention the ordeal of having to undergo the shameful experience of
police interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is punished for the universal hostility
of the perpetrators against their victims who are passengers and complement of the
vessel, and because of the fact that, in the high seas, no one may be expected to be
able to come to the rescue of the helpless victims. For the same reason, Mr. Speaker,
the crime of air piracy is punished due to the evil motive of the hijackers in making
unreasonable demands upon the sovereignty of an entire nation or nations, coupled
with the attendant circumstance of subjecting the passengers to terrorism." [37]
The debate on House Bill No. 62 lasted from October 27, 1992 to February 11, 1993.
On February 11, 1993, the Members of the House of Representatives overwhelmingly
approved the death penalty bill on second reading.
On February 23, 1993, after explaining their votes, the Members of the House of
Representatives cast their vote on House Bill No. 62 when it was up for consideration
on third reading. [38] The results were 123 votes in favor, 26 votes against, and 2
abstentions
After the approval on third reading of House Bill No. 62 on February 23, 1993 and of
Senate Bill No. 891 on August 16, 1993, the Bicameral Conference Committee
convened to incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to Impose the
Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised
Penal Code, as Amended, Other Special Penal Laws, and for Other Purposes," took
effect.[39]
Between December 31, 1993, when R.A. No. 7659 took effect, and the present time,
criminal offenders have been prosecuted under said law, and one of them, herein
accused-appellant, has been, pursuant to said law, meted out the supreme penalty of
death for raping his ten-year old daughter. Upon his conviction, his case was elevated
to us on automatic review. On June 25, 1996, we affirmed his conviction and the
death sentence.
Now, accused-appellant comes to us in the heels of this court's affirmation of his death
sentence and raises for the first time the issue of the constitutionality of R.A. 7659. His
thesis is two-fold: (1) that the death penalty law is unconstitutional per se for having
been enacted in the absence of compelling reasons therefor; and (2) that the death
penalty for rape is a cruel, excessive and inhuman punishment in violation of the
constitutional proscription against punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with accused-appellant's view
that Congress enacted R.A. No. 7659 without complying with the twin requirements of
compelling reasons and heinous crimes.
At this juncture, the detailed events leading to the enactment of R.A. No. 7659 as
unfurled in the beginning of this disquisition, necessarily provide the context for the
following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress the power
to re-impose the death penalty "for compelling reasons involving heinous crimes".
39
This power is not subsumed in the plenary legislative power of Congress, for it is
subject to a clear showing of "compelling reasons involving heinous crimes."
The constitutional exercise of this limited power to re-impose the death penalty entails
(1) that Congress define or describe what is meant by heinous crimes; (2) that
Congress specify and penalize by death, only crimes that qualify as heinous in
accordance with the definition or description set in the death penalty bill and/or
designate crimes punishable by reclusion perpetua to death in which latter case, death
can only be imposed upon the attendance of circumstances duly proven in court that
characterize the crime to be heinous in accordance with the definition or description
set in the death penalty bill; and (3) that Congress, in enacting this death penalty bill
be singularly motivated by "compelling reasons involving heinous crimes."
In the second whereas clause of the preamble of R.A. No. 7659, we find the definition
or description of heinous crimes. Said clause provides that
"x x x the crimes punishable by death under this Act are heinous for being grievous,
odious and hateful offenses and which, by reason of their inherent or manifest
wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just, civilized and ordered
society."
Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando, [40] traced
the etymological root of the word "heinous" to the Early Spartans' word, "haineus",
meaning, hateful and abominable, which, in turn, was from the Greek prefix "haton",
denoting acts so hatefully or shockingly evil.
We find the foregoing definition or description to be a sufficient criterion of what is to
be considered a heinous crime. This criterion is deliberately undetailed as to the
circumstances of the victim, the accused, place, time, the manner of commission of
crime, its proximate consequences and effects on the victim as well as on society, to
afford the sentencing authority sufficient leeway to exercise his discretion in imposing
the appropriate penalty in cases where R.A. No. 7659 imposes not a mandatory
penalty of death but the more flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina and Taada grilled
the sponsors of the bill as regards what they perceived as a mere enumeration of
capital crimes without a specification of the elements that make them heinous. They
were oblivious to the fact that there were two types of crimes in the death penalty bill:
first, there were crimes penalized by reclusion perpetua to death; and second, there
were crimes penalized by mandatory capital punishment upon the attendance of
certain specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to
death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by any of the following four
circumstances: (a) the victim was detained for more than three days; (b) it was
committed simulating public authority; (c) serious physical injuries were inflicted on the
victim or threats to kill him were made; and (d) if the victim is a minor, except when the
accused is any of the parents, female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
(8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a
building where people usually gather; (c) a train, ship or airplane for public use; (d) a
building or factory in the service of public utilities; (e) a building for the purpose of
concealing or destroying evidence Or a crime; (f) an arsenal, fireworks factory, or
government museum; and (g) a storehouse or factory of explosive materials located in
an inhabited place; or regardless of what is burned, if the arson is perpetrated by two
or more persons (Sec. 10);
(9) Rape attended by any of the following circumstances: (a) the rape is committed
with a deadly weapon; (b) the rape is committed by two or more persons; and (c) the
rape is attempted or frustrated and committed with homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs (Sec. 13);
(12) Sale, administration, delivery, distribution, and transportation of prohibited drugs
(id.);
(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited drugs (id.)
(17) Importation of regulated drugs (Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery, transportation, and distribution of
regulated drugs (id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account dangerous drugs
confiscated by the arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or immediate vicinity of another
to implicate the latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle
is killed or raped (Sec. 20).
All the foregoing crimes are not capital crimes per se, the uniform penalty for all of
them being not mandatory death but the flexible penalty of reclusion perpetua to death.
In other words, it is premature to demand for a specification of the heinous elements in
each of foregoing crimes because they are not anyway mandatorily penalized with
death. The elements that call for the imposition of the supreme penalty of death in
these crimes, would only be relevant when the trial court, given the prerogative to
impose reclusion perpetua, instead actually imposes the death penalty because it has,
in appreciating the evidence proffered before it, found the attendance of certain
40
circumstances in the manner by which the crime was committed, or in the person of
the accused on his own or in relation to the victim, or in any other matter of
significance to the commission of the crime or its effects on the victim or on society,
which circumstances characterize the criminal acts as grievous, odious, or hateful, or
inherently or manifestly wicked, vicious, atrocious or perverse as to be repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.
On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in
the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and he refrains from arresting or
prosecuting an offender who has committed a crime punishable by reclusion perpetua
and/or death in consideration of any offer, promise, gift or present, he shall suffer the
penalty for the offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the
penalty of death." (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom resulting in the death of the
victim or the victim is raped, tortured or subjected to dehumanizing acts
"The penalty shall be death where the kidnapping or detention was committed for the
purpose of ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is
subject to torture or dehumanizing acts, the maximum penalty [of death] shall be
imposed." (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts penalized under this Article,
death results, the mandatory penalty of death shall be imposed." (Sec. 10)
(4) Rape with the victim becoming insane, rape with homicide and qualified
"When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.
The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent or the victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the children
or other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent
physical mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and transportation of prohibited drugs
where the victim is a minor or the victim dies
"Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of
the offense is a minor, or should a prohibited drug involved in any offense under this
Section be the proximate cause of the death of victim thereof, the maximum penalty [of
death] herein provided shall be imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is
a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum
of the penalty [of death] shall be imposed in every case where a prohibited drug is
administered, delivered or sold to a minor who is allowed to use the same in such
place.
Should a prohibited drug be the proximate case of the death of a person using the
same in such den, dive or resort, the maximum penalty herein provided shall be
imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to
the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and transportation of
regulated drugs where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of
the offense is a minor, or should a regulated drug involved in any offense under this
Section be the proximate cause of the death of a victim thereof, the maximum penalty
[of death] herein provided shall be imposed." (Sec. 14)
(8) Maintenance of den, dive, or resort for users of regulated drugs where the victim
is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum
penalty [of death] herein provided shall be imposed in every case where a regulated
drug is administered, delivered or sold to a minor who is allowed to use the same in
such place.
Should a regulated drug be the proximate cause of death of a person using the same
in such den, dive or resort, the maximum penalty herein provided shall be imposed on
the maintainer notwithstanding the provisions of Section 20 of this Act to the
contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials, employees or officers
including members of police agencies and armed forces
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9,
11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III
[of the Dangerous Drugs Act of 1972] shall be imposed, if those found guilty or any of
41
the same offenses are government officials, employees or officers including members
of police agencies and the armed forces." (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with the mandatory
death penalty if convicted are government officials, employees or officers
"Any such above government official, employee or officer who is found guilty of
'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II
and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous Drugs Act of 1972) in
the person or in the immediate vicinity of another as evidence to implicate the latter,
shall suffer the same penalty as therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken by the offender of his
public position, the penalty to be imposed shall be in its maximum [of death] regardless
of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was committed by any
person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of gain in the
commission of any crime." (Sec. 23)
It is specifically against the foregoing capital crimes that the test of heinousness must
be squarely applied.
The evil of a crime may take various forms. There are crimes that are, by their very
nature, despicable, either because life was callously taken or the victim is treated like
an animal and utterly dehumanized as to completely disrupt the normal course of his
or her growth as a human being. The right of a person is not only to live but to live a
quality life, and this means that the rest of society is obligated to respect his or her
individual personality, the integrity and the sanctity of his or her own physical body, and
the value he or she puts in his or her own spiritual, psychological, material and social
preferences and needs. Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the victim is raped,
tortured, or subjected to dehumanizing acts; destructive arson resulting in death, and
drug offenses involving minors or resulting in the death of the victim in the case of
other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious
illegal detention where the victim is detained for more than three days or serious
physical injuries were inflicted on the victim or threats to kill him were made or the
victim is a minor, robbery with homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is
killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous
by their very nature.
There are crimes, however, in which the abomination lies in the significance and
implications of the subject criminal acts in the scheme of the larger socio-political and
economic context in which the state finds itself to be struggling to develop and provide
for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical
rule that bankrupted the government and impoverished the population, the Philippine
Government must muster the political will to dismantle the culture of corruption,
dishonesty, greed and syndicated criminality that so deeply entrenched itself in the
structures of society and psyche of the populace. Terribly lacking the money to
provide even the most basic services to its people, any form of misappropriation or
misapplication of government funds translates to an actual threat to the very existence
of government, and in turn, the very survival of the people it governs over. Viewed in
this context, no less heinous are the effects and repercussions of crimes like qualified
bribery, destructive arson resulting in death, and drug offenses involving government
officials, employees or officers, that their perpetrators must not be allowed to cause
further destruction and damage to society.
We have no doubt, therefore, that insofar as the element of heinousness is concerned,
R.A. No. 7659 has correctly identified crimes warranting the mandatory penalty of
death. As to the other crimes in R.A. No. 7659 punished by reclusion perpetua to
death, they are admittingly no less abominable than those mandatorily penalized by
death. The proper time to determine their heinousness in contemplation of law, is
when on automatic review, we are called to pass on a death sentence involving crimes
punishable by reclusion perpetua to death under R.A. No. 7659, with the trial court
meting out the death sentence in exercise of judicial discretion. This is not to say,
however, that the aggravating circumstances under the Revised Penal Code need be
additionally alleged as establishing the heinousness of the crime for the trial court to
validly impose the death penalty in the crimes under R.A. No. 7659 which are
punished with the flexible penalty of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the provisions of the
Revised Penal Code relating to aggravating circumstances. Secondly, R.A. No. 7659,
while it specifies circumstances that generally qualify a crime provided therein to be
punished by the maximum penalty of death, neither amends nor repeals the
aggravating circumstances under the Revised Penal Code. Thus, construing R.A. No.
7659 in parimateria with the Revised Penal Code, death may be imposed when (1)
aggravating circumstances attend the commission of the crime as to make operative
the provision of the Revised Penal Code regarding the imposition of the maximum
penalty; and (2) other circumstances attend the commission of the crime which
indubitably characterize the same as heinous in contemplation of R.A. No. 7659 that
justify the imposition of the death, albeit the imposable penalty is reclusion perpetua to
death. Without difficulty, we understand the rationale for the guided discretion granted
in the trial court to cognize circumstances that characterize the commission of the
crime as heinous. Certainly there is an infinity of circumstances that may attend the
commission of a crime to the same extent that there is no telling the evil that man is
capable of. The legislature cannot and need not foresee and inscribe in law each and
every loathsome act man is capable of. It is sufficient thus that R.A. 7659 provides the
test and yardstick for the determination of the legal situation warranting the imposition
of the supreme penalty of death. Needless to say, we are not unaware of the ever
existing danger of abuse of discretion on the part of the trial court in meting out the
death sentence. Precisely to reduce to nil the possibility of executing an innocent man
or one criminal but not heinously criminal, R.A. 7659 is replete with both procedural
and substantive safeguards that ensure only the correct application of the mandate of
R.A. No. 7659.
In the course of the congressional debates on the constitutional requirement that the
death penalty be re-imposed for compelling reasons involving heinous crimes, we note
that the main objection to the death penalty bill revolved around the persistent demand
of the abolitionists for a statement of the reason in each and every heinous crime and
statistical proof the such compelling reason actually exists.
42
We believe, however, that the elements of heinousness and compulsion are
inseparable and are, in fact, interspersed with each other. Because the subject crimes
are either so revolting and debasing as to violate the most minimum of the human
standards of decency or its effects, repercussions, implications and consequences so
destructive, destabilizing, debilitating, or aggravating in the context of our socio-
political and economic agenda as a developing nation, these crimes must be
frustrated, curtailed and altogether eradicated. There can be no ifs or buts in the face
of evil, and we cannot afford to wait until we rub elbows with it before grasping it by the
ears and thrashing it to its demission.
The abolitionists in congress insisted that all criminal reforms first be pursued and
implemented before the death penalty be re-imposed in case such reforms prove
unsuccessful. They claimed that the only compelling reason contemplated of by the
constitution is that nothing else but the death penalty is left for the government to
resort to that could check the chaos and the destruction that is being caused by
unbridled criminality. Three of our colleagues, are of the opinion that the compelling
reason required by the constitution is that there occurred a dramatic and significant
change in the socio-cultural milieu after the suspension of the death penalty on
February 2, 1987 such as an unprecedented rise in the incidence of criminality. Such
are, however, interpretations only of the phrase "compelling reasons" but not of the
conjunctive phrase "compelling reasons involving heinous crimes". The imposition of
the requirement that there be a rise in the incidence of criminality because of the
suspension of the death penalty, moreover, is an unfair and misplaced demand, for
what it amounts to, in fact, is a requirement that the death penalty first proves itself to
be a truly deterrent factor in criminal behavior. If there was a dramatically higher
incidence of criminality during the time that the death penalty was suspended, that
would have proven that the death penalty was indeed a deterrent during the years
before its suspension. Suffice it to say that the constitution in the first place did not
require that the death penalty be first proven to be a deterrent; what it requires is that
there be compelling reasons involving heinous crimes.
Article III, Section 19 (1) of the 1987 Constitution simply states that congress, for
compelling reasons involving heinous crimes, may re-impose the death penalty.
Nothing in the said provision imposes a requirement that for a death penalty bill to be
valid, a positive manifestation in the form of a higher incidence of crime should first be
perceived and statistically proven following the suspension of the death penalty.
Neither does the said provision require that the death penalty be resorted to as a last
recourse when all other criminal reforms have failed to abate criminality in society. It is
immaterial and irrelevant that R.A. No. 7659 cites that there has been an "alarming
upsurge of such crimes", for the same was never intended by said law to be the
yardstick to determine the existence of compelling reasons involving heinous crimes.
Fittingly, thus, what R.A. No. 7659 states is that "the Congress, in the interest of
justice, public order and rule of law, and the need to rationalize and harmonize the
penal sanctions for heinous crimes, finds compelling reasons to impose the death
penalty for said crimes."
We now proceed to answer accused-appellant's other ground for attacking the
constitutionality of R.A. No. 7659, i.e., that the death penalty imposed in rape is
violative of the constitutional proscription against cruel, degrading or inhuman
punishment.
Accused-appellant first claims that the death penalty is per se a cruel, degrading or
inhuman punishment as ruled by the United States (U.S.) Supreme Court in Furman v.
Georgia.[41] To state, however, that the U.S. Supreme Court, in Furman, categorically
ruled that the death penalty is a cruel, degrading or inhuman punishment, is
misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the arbitrariness
pervading the procedures by which the death penalty was imposed on the accused by
the sentencing jury. Thus, the defense theory in Furman centered not so much on the
nature of the death penalty as a criminal sanction but on the discrimination against the
black accused who is meted out the death penalty by a white jury that is given the
unconditional discretion to determine whether or not to impose the death penalty. In
fact, the long road of the American abolitionist movement leading to the landmark case
of Furman was trekked by American civil rights advocates zealously fighting against
racial discrimination. Thus, the U.S. Supreme Court stated in Furman:
"We cannot say from facts disclosed in these records that these defendants were
sentenced to death because they were black. Yet our task is not restricted to an effort
to divine what motives impelled these death penalties. Rather, we deal with a system
of law and of justice that leaves to the uncontrolled discretion of judges or juries the
determination whether defendants committing these crimes should die x x x.
xxx
In a Nation committed to equal protection of the laws there is no permissible 'caste'
aspect of law enforcement. Yet we know that the discretion of judges and juries in
imposing the death penalty enables the penalty to be selectively applied, feeding
prejudices against the accused if he is poor and despised x x x.
xxx
Thus, these discretionary statutes are unconstitutional in their operation. They are
pregnant with discrimination and discrimination is an ingredient not compatible with the
idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual'
punishments."
Furman, thus, did not outlaw the death penalty because it was cruel and unusual per
se. While the U.S. Supreme Court nullified all discretionary death penalty statutes in
Furman, it did so because the discretion which these statutes vested in the trial judges
and sentencing juries was uncontrolled and without any parameters, guidelines, or
standards intended to lessen, if not altogether eliminate, the intervention of personal
biases, prejudices and discriminatory acts on the part of the trial judges and
sentencing juries.
Consequently, in the aftermath of Furman, when most of the states re-enacted their
death penalty statutes now bearing the procedural checks that were required by the
U.S. Supreme Court, said court affirmed the constitutionality of the new death penalty
statutes in the cases of Gregg v. Georgia,[42] Jurek v. Texas,[43] and Profitt v. Florida.
[44]
Next, accused-appellant asseverates that the death penalty is a cruel, inhuman or
degrading punishment for the crime of rape mainly because the latter, unlike murder,
does not involve the taking of life. In support of his contention, accused-appellant
largely relies on the ruling of the U.S. Supreme Court in Coker v. Georgia.[45]
In Coker, the U.S. Supreme Court ruled as follows:
43
"x x x It is now settled that the death penalty is not invariably cruel and unusual
punishment within the meaning of the Eighth Amendment; it is not inherently barbaric
or an unacceptable mode of punishment for crime; neither is it always disproportionate
to the crime for which it is imposed. It is also established that imposing capital
punishment, at least for murder, in accordance with the procedures provided under the
Georgia statutes saves the sentence from the infirmities which led the Court to
invalidate the prior Georgia capital punishment statute in Furman v. Georgia x x x.
xxx
In Gregg [v. Georgia] x x x the Court's judgment was that the death penalty for
deliberate murder was neither the purposeless imposition of severe punishment nor a
punishment grossly disproportionate to the crime. But the Court reserved the question
of the constitutionality of the death penalty when imposed for other crimes. x x x
That question, with respect to rape of an adult woman, is now before us.
xxx
x x x [T]he public judgment with respect to rape, as reflected in the statutes providing
the punishment for that crime, has been dramatically different. In reviving death
penalty laws to satisfy Furman's mandate, none of the States that had not previously
authorized death for rape chose to include rape among capital felonies. Of the 16
States in which rape had been a capital offense, only three provided the death penalty
for rape of an adult woman in their revised statutes -- Georgia, North Carolina. and
Louisiana. In the latter two States, the death penalty was mandatory for those found
guilty, and those laws were invalidated by Woodson and Roberts. When Louisiana
and North Carolina, respondent to those decisions, again revised their capital
punishment laws, they reenacted the death penalty for murder but not for rape; none of
the seven other legislatures that to our knowledge have amended or replaced their
death penalty statutes since July 2, 1976, including four States (in addition to
Louisiana and North Carolina) that had authorized the death sentence for rape prior to
1972 and had reacted to Furman with mandatory statutes, included rape among the
crimes for which death was an authorized punishment.
xxx
It should be noted that Florida, Mississippi, and Tennessee also authorized the death
penalty in some rape cases, but only where the victim was a child, and the rapist an
adult, the Tennessee statute has since been invalidated because the death sentence
was mandatory. x x x The upshot is that Georgia is the sole jurisdiction in the United
States at the present time that authorizes a sentence of death when the rape victim is
an adult woman, and only two other jurisdictions provide capital punishment when the
victim is a child
The current judgment with respect to the death penalty for rape is not wholly
unanimous among state legislatures, but it obviously weighs very heavily on the side of
rejecting capital punishment as a suitable penalty for raping an adult woman.
x x x [T]he legislative rejection of capital punishment for rape strongly confirms our
own judgment, which is that death is indeed a disproportionate penalty for the crime of
raping an adult woman.
We do not discount the seriousness of rape as a crime. It is highly reprehensible, both
in a moral sense and in its almost total contempt for the personal integrity and
autonomy of the female victim and for the latter's privilege of choosing those with
whom intimate relationships are to be established. Short of homicide, it is the 'ultimate
violation of self.' It is also a violent crime because it normally involves force, or the
threat of force or intimidation, to over come the will and the capacity of the victim to
resist. Rape is very often accompanied by physical injury to the female and can also
inflict mental and psychological damage. Because it undermines the community's
sense of security, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of moral depravity
and of the injury to the person and to the public, it does not compare with murder,
which does involve the unjustified taking of human life. Although it may be
accompanied by another crime, rape by definition does not include the death of or
even the serious injury to another person. The murderer kills; the rapist, if no more
than that, does not. Life is over for the victim of the murderer; for the rape victim, life
may not be nearly so happy as it was, but it is not over and normally is not beyond
repair. We have the abiding conviction that the death penalty, which 'is unique in its
severity and irrevocability' x x x is an excessive penalty for the rapist who, as such,
does not take human life."
The U.S. Supreme Court based its foregoing ruling on two grounds: first, that the
public has manifested its rejection of the death penalty as a proper punishment for the
crime of rape through the willful omission by the state legislatures to include rape in
their new death penalty statutes in the aftermath of Furman; and second, that rape,
while concededly a dastardly contemptuous violation of a woman's spiritual integrity,
physical privacy, and psychological balance, does not involve the taking of life.
Anent the first ground, we fail to see how this could have any bearing on the Philippine
experience and in the context of our own culture.
Anent the second ground, we disagree with the court's predicate that the gauge of
whether or not a crime warrants the death penalty or not, is the attendance of the
circumstance of death on the part of the victim. Such a premise is in fact an ennobling
of the biblical notion of retributive justice of "an eye for an eye, a tooth for a tooth". We
have already demonstrated earlier in our discussion of heinous crimes that the
forfeiture of life simply because life was taken, never was a defining essence of the
death penalty in the context of our legal history and cultural experience; rather, the
death penalty is imposed in heinous crimes because the perpetrators thereof have
committed unforgivably execrable acts that have so deeply dehumanized a person or
criminal acts with severely destructive effects on the national efforts to lift the masses
from abject poverty through organized governmental strategies based on a disciplined
and honest citizenry, and because they have so caused irreparable and substantial
injury to both their victim and the society and a repetition of their acts would pose
actual threat to the safety of individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this court has no doubts as to the
innate heinousness of the crime of rape, as we have held in the case of People v.
Cristobal: [46]
"Rape is the forcible violation of the sexual intimacy of another person. It does injury to
justice and charity. Rape deeply wounds the respect, freedom, and physical and moral
integrity to which every person has a right. It causes grave damage that can mark the
victim for life. It is always an intrinsically evil act xxx an outrage upon decency and
dignity that hurts not only the victim but the society itself."
44
We are not unaware that for all the legal posturings we have so essayed here, at the
heart of the issue of capital punishment is the wistful, sentimental life-and-death
question to which all of us, without thinking, would answer, "life, of course, over death".
But dealing with the fundamental question of death provides a context for struggling
with even more basic questions, for to grapple with the meaning of death is, in an
indirect way, to ask the meaning of life. Otherwise put, to ask what the rights are of the
dying is to ask what the rights are of the living.
"Capital punishment ought not to be abolished solely because it is substantially
repulsive, if infinitely less repulsive than the acts which invoke it. Yet the mounting
zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that
seeks to expunge from the society all that appears harsh and suppressive. If we are to
preserve the humane society we will have to retain sufficient strength of character and
will to do the unpleasant in order that tranquillity and civility may rule comprehensively.
It seems very likely that capital punishment is a x x x necessary, if limited factor in that
maintenance of social tranquillity and ought to be retained on this ground. To do
otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over
the necessity of social survival." [47]
WHEREFORE, in view of all the foregoing, the Motion for Reconsideration and the
Supplemental Motion for Reconsideration are hereby DENIED[48] for LACK OF
MERIT.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ.,
concur.
G.R. No. L-51770March 20, 1985
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO GALIT, defendant-appellant.
CONCEPCION, JR., J:
1. The prisoner was arrested for killing the victim oil the occasion of a robbery.
He had been detained and interrogated almost continuously for five days, to no avail.
He consistently maintained his innocence. There was no evidence to link him to the
crime. Obviously, something drastic had to be done. A confession was absolutely
necessary. So the investigating officers began to maul him and to torture him
physically. Still the prisoner insisted on his innocence. His will had to be broken. A
confession must be obtained. So they continued to maltreat and beat him. 'They
covered his face with a rag and pushed his face into a toilet bowl full of human waste.
The prisoner could not take any more. His body could no longer endure the pain
inflicted on him and the indignities he had to suffer. His will had been broken. He
admitted what the investigating officers wanted him to admit and he signed the
confession they prepared. Later, against his will, he posed for pictures as directed by
his investigators, purporting it to be a reenactment.
2. This incident could have happened in a Russian gulag or in Hitler's Germany.
But no it did not. It happened in the Philippines. In this case before Us.
3. The Revised Penal Code punishes the maltreatment of prisoners as follows:
ART. 235. Maltreatment of prisoners. The penalty of arresto mayor in its
medium period to prision correccional in its minimum period, in addition to his liability
for the physical injuries or damage caused, shall be imposed upon any public officer or
employee who shall over do himself in the correction or handling of a prisoner or
detention prisoner under his charge, by the imposition of punishments in a cruel and
humiliating manner.
If the purpose of the maltreatment is to extort a confession, or to obtain some
information from the prisoner, the offender shall be punished by prision correccional in
its minimum period, temporary special disqualification and a fine not exceeding 500
pesos, in addition to his liability for the physical injuries or damage caused.
4. This Court in a long line of decisions over the years, the latest being the case
of People vs. Cabrera, 1 has consistently and strongly condemned the practice of
maltreating prisoners to extort confessions from them as a grave and unforgivable
violation of human rights. But the practice persists. Fortunately, such instances
constitute the exception rather than the general rule.
5. Before Us for mandatory review is the death sentence imposed upon the
accused Francisco Galit by the Circuit Criminal Court of Pasig, Rizal, in Crim. Case
No. CCC-VII-2589 of said court.
6. The record shows that in the morning of August 23, 1977, Mrs. Natividad
Fernando, a widow, was found dead in the bedroom of her house located at Barrio
Geronimo, Montalban, Rizal, as a result of seven (7) wounds inflicted upon different
parts of her body by a blunt instrument. 2 More than two weeks thereafter, police
authorities of Montalban picked up the herein accused, Francisco Galit, an ordinary
45
construction worker (pion) living in Marikina, Rizal, on suspicion of the murder. On the
following day, however, September 8, 1977, the case was referred to the National
Bureau of Investigation (NBI) for further investigation in view of the alleged limited
facilities of the Montalban police station. Accordingly, the herein accused was brought
to the NBI where he was investigated by a team headed by NBI Agent Carlos Flores. 3
NBI Agent Flores conducted a preliminary interview of the suspect who allegedly gave
evasive answers to his questions. 4 But the following day, September 9, 1977,
Francisco Galit voluntarily executed a Salaysay admitting participation in the
commission of the crime. He implicated Juling Dulay and Pabling Dulay as his
companions in the crime. 5 As a result, he was charged with the crime of Robbery with
Homicide, in an information filed before the Circuit Criminal Court of Pasig, Rizal,
committed as follows:
That on or about the 23rd day of August 1977 in the municipality of Montalban,
province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together with Juling Doe and
Pabling Doe, whose true Identities and present whereabouts are still unknown and
three of them mutually helping and aiding one another, with intent of gain and by
means of force, intimidation and violence upon the person of one Natividad Fernando
while in her dwelling, did, then and there wilfully, unlawfully, and feloniously take, steal
and carry away from the person of said Natividad Fernando, cash money of an
undetermined amount, belonging to said Natividad Fernando, thereby causing damage
and prejudice to the latter in an undetermined amount; that by reason or on the
occasion of said robbery, and for purpose of enabling them (accused) to take, steal
and carry away the said cash money in pursuance of their conspiracy and for the
purpose of insuring the success of their criminal act, with intent to kill, did, then and
there wilfully, unlawfully, and feloniously attack, assault and stab with a dagger said
Natividad Fernando on the different parts of her body, thereby inflicting multiple injuries
on the head and extremities, which directly caused her death, and the total amount of
the loss is P10,000.00 including valuables and cash.
Trial was held, and on August 11, 1978, immediately after the accused had terminated
the presentation of his evidence, the trial judge dictated his decision on the case in
open court, finding the accused guilty as charged and sentencing him to suffer the
death penalty; to indemnify the heirs of the victim in the sum of P110,000.00, and to
pay the costs. Hence, the present recourse.
7. The incriminatory facts of the case, as found by the trial court, are as follows:
From the evidence adduced in this case, it was gathered that in the early morning of
August 23, 1977, a 70-year old woman named Natividad Fernando, widow, in the
twilight of her life, was robbed and then hacked to death by the accused and two
others in her (victim's) own residence at Montalban, Rizal.
Prosecution witness Florentino Valentino testified that he heard accused Francisco
Galit and his wife having an argument in connection with the robbery and killing of the
victim, Natividad Fernando. It appears that on August 18, 1977, accused Galit and two
others, namely, Juling Dulay and a certain "Pabling" accidentally met each other at
Marikina, Rizal, and in their conversation, the three agreed to rob Natividad Fernando;
that it was further agreed among them to enter the premises of the victim's house at
the back yard by climbing over the fence; that once inside the premises, they will
search every room, especially the aparador and filing cabinets, with the sole aim of
looking for cash money and other valuables.
Witness Valentino further testified that on August 22, 1977, at around 6:00 o'clock in
the afternoon, accused Francisco Galit and his two companions, Juling Dulay and
Pabling, as per their previous agreement, met at the place where they formerly saw
each other in Mariquina, Rizal; that the three conspirators took a jeepney for
Montalban and upon passing the Montalban Municipal Building, they stopped and they
waited at the side of the road until the hour of midnight; that at about 12:00 o'clock that
night, the three repaired to the premises of the victim, Natividad Fernando; that they
entered the said premises through the back wall of the house; that while entering the
premises of said house, Juling Dulay saw a bolo, lying near the piggery compound,
which he picked up and used it to destroy the back portion of the wall of the house;
that it was Juling Dulay who first entered the house through the hole that they made,
followed by the accused Galit and next to him was "Pabling", that it was already early
dawn of August 23, 1977 when the three were able to gain entrance into the house of
the victim; as the three could not find anything valuable inside the first room that they
entered, Juling Dulay destroyed the screen of the door of the victim, Natividad
Fernando; that upon entering the room of the victim, the three accused decided to kill
first the victim, Natividad Fernando, before searching the room for valuables; that
Juling Dulay, who was then holding the bolo, began hacking the victim, who was then
sleeping, and accused Galit heard a moaning sound from the victim; that after the
victim was killed, the three accused began searching the room for valuables; that they
helped each other in opening the iron cabinet inside the room of the victim, where they
found some money; that when the three accused left the room of the victim, they
brought with them some papers and pictures which they threw outside; that after killing
and robbing the victim, the three accused went out of the premises of the house, using
the same way by which they gained entrance, which was through the back portion of
the wall; that the three accused walked towards the river bank where they divided the
loot that they got from the room of the victim; that their respective shares amount to
P70.00 for each of them; and that after receiving their shares of the loot, the three
accused left and went home.
When witness Florentino Valentino was in his room, which was adjoining that of
accused Francisco Galit, he overheard accused Galit and his wife quarreling about the
intention of accused Galit to leave their residence immediately; that he further stated
that he overheard accused Galit saying that he and his other two companions robbed
and killed Natividad Fernando.
As a result of the killing, the victim, Natividad Fernando, suffered no less than seven
stab wounds. There was massive cerebral hemorrhage and the cause of death was
due to shock and hemorrhage, as evidenced by the Medico-Legal Necropsy Report
(Exhs. 'C' and 'C-2'), and the pictures taken of the deceased victim (Exhs. 'E', 'E-1' and
'E-2').
8. The accused, upon the other hand, denied participation in the commission of
the crime. He claimed that he was in his house in Marikina, Rizal, when the crime was
committed in Montalban, Rizal. He also assailed the admissibility of the extra-judicial
confession extracted from him through torture, force and intimidation as described
earlier, and without the benefit of counsel.
46
9. After a review of the records, We find that the evidence presented by the
prosecution does not support a conviction. In fact, the findings of the trial court relative
to the acts attributed to the accused are not supported by competent evidence. The
principal prosecution witness, Florentino Valentino merely testified that he and the
accused were living together in one house in Marikina, Rizal, on August 23, 1977,
because the mother of his wife is the wife of the accused; that when he returned home
at about 4:00 o'clock in the morning from the police station of Marikina, Rizal, the
accused and his wife were quarreling (nagtatalo); that he heard that the accused was
leaving the house because he and his companions had robbed "Aling Nene", the
owner of a poultry farm and piggery in Montalban, Rizal; that the wife of the accused
was imploring him not to leave, but the latter was insistent; that he saw the accused
carrying a bag containing about two handfuls (dakot) of coins which he had taken from
Aling Nene; that upon learning of what the accused had done, he went to the
Montalban police the next day and reported to the police chief about what he had
heard; and that a week later, Montalban policemen went to their house and arrested
the accused. 6
SAGOT: Opo.
12. Such a long question followed by a monosyllabic answer does not satisfy the
requirements of the law that the accused be informed of his rights under the
Constitution and our laws. Instead there should be several short and clear questions
and every right explained in simple words in a dialect or language known to the person
under investigation. Accused is from Samar and there is no showing that he
understands Tagalog. Moreover, at the time of his arrest, accused was not permitted to
communicate with his lawyer, a relative, or a friend. In fact, his sisters and other
relatives did not know that he had been brought to the NBI for investigation and it was
only about two weeks after he had executed the salaysay that his relatives were
allowed to visit him. His statement does not even contain any waiver of right to counsel
and yet during the investigation he was not assisted by one. At the supposed
reenactment, again accused was not assisted by counsel of his choice. These
constitute gross violations of his rights.

10. This Court, in the case of Morales vs. Ponce Enrile, 7 laid down the correct 13. The alleged confession and the pictures of the supposed re-enactment are
procedure for peace officers to follow when making an arrest and in conducting a inadmissible as evidence because they were obtained in a manner contrary to law.
custodial investigation, and which We reiterate: 14. Trial courts are cautioned to look carefully into the circumstances surrounding
7. At the time a person is arrested, it shall be the duty of the arresting officer to the taking of any confession, especially where the prisoner claims having been
inform him of the reason for the arrest and he must be shown the warrant of arrest, if maltreated into giving one. Where there is any doubt as to its voluntariness, the same
any. He shall be informed of his constitutional rights to remain silent and to counsel, must be rejected in toto.
and that any statement he might make could be used against him. The person 15. Let a copy of this decision be furnished the Minister of Justice for whatever
arrested shall have the right to communicate with his lawyer, a relative, or anyone he action he may deem proper to take against the investigating officers.
chooses by the most expedient means by telephone if possible or by letter or
16. WHEREFORE, the judgment appealed from should be, as it is hereby, SET
messenger. It shall be the responsibility of the arresting officer to see to it that this is
ASIDE, and another one entered ACQUITTING the accused Francisco Galit of the
accomplished. No custodial investigation shall be conducted unless it be in the
crime charged. Let him be released from custody immediately unless held on other
presence of counsel engaged by the person arrested, by any person on his behalf, or
charges. With costs de oficio.
appointed by the court upon petition either of the detainee himself or by anyone on his
behalf. The right to counsel may be waived but the waiver shall not be valid unless 17. SO ORDERED.
made with the assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole or in part,
Fernando, C.J., Teehankee, Makasiar, Abad Santos, Melencio-Herrera, Plana, Escolin,
shall be inadmissible in evidence.
Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.
11. There were no eyewitnesses, no property recovered from the accused, no
Aquino, J., took no part.
state witnesses, and not even fingerprints of the accused at the scene of the crime.
The only evidence against the accused is his alleged confession. It behooves Us
therefore to give it a close scrutiny. The statement begins as follows:
I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mga karapatan sa ilalim
ng Saligang-Batas ng Pilipinas na kung inyong nanaisin ay maaaring hindi kayo
magbigay ng isang salaysay, na hindi rin kayo maaaring pilitin o saktan at pangakuan
upang magbigay ng naturang salaysay, na anuman ang inyong sasabihin sa
pagsisiyasat na ito ay maaaring laban sa inyo sa anumang usapin na maaaring ilahad
sa anumang hukuman o tribunal dito sa Pilipinas, na sa pagsisiyasat na ito ay
maaaring katulungin mo ang isang manananggol at kung sakaling hindi mo kayang
bayaran ang isang manananggol ay maaaring bigyan ka ng isa ng NBI. Ngayon at
alam mo na ang mga ito nakahanda ka bang magbigay ng isang kusang-loob na
salaysay sa pagtatanong na ito?

47
G.R. No. L-14078 March 7, 1919
RUBI, ET AL. (manguianes), plaintiffs,
vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:
In one of the cases which denote a landmark in American Constitutional History
(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of
American jurisprudence, began his opinion (relating to the status of an Indian) with
words which, with a slight change in phraseology, can be made to introduce the
present opinion This cause, in every point of view in which it can be placed, is of the
deepest interest. The legislative power of state, the controlling power of the
constitution and laws, the rights if they have any, the political existence of a people, the
personal liberty of a citizen, are all involved in the subject now to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed
first, to introduce the facts and the issues, next to give a history of the so called "non-
Christians," next to compare the status of the "non-Christians" with that of the
American Indians, and, lastly, to resolve the constitutional questions presented.
I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other Manguianes of the
Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of
their liberty by the provincial officials of that province. Rubi and his companions are
said to be held on the reservation established at Tigbao, Mindoro, against their will,
and one Dabalos is said to be held under the custody of the provincial sheriff in the
prison at Calapan for having run away form the reservation.
The return of the Solicitor-General alleges:
1. That on February 1, 1917, the provincial board of Mindoro adopted resolution
No. 25 which is as follows:
The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:
"Whereas several attempts and schemes have been made for the advancement of the
non-Christian people of Mindoro, which were all a failure,
"Whereas it has been found out and proved that unless some other measure is taken
for the Mangyan work of this province, no successful result will be obtained toward
educating these people.
"Whereas it is deemed necessary to obliged them to live in one place in order to make
a permanent settlement,
"Whereas the provincial governor of any province in which non-Christian inhabitants
are found is authorized, when such a course is deemed necessary in the interest of
law and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.
"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake
Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public
land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent
settlement of Mangyanes in Mindoro subject to the approval of the Honorable
Secretary of the Interior, and
"Resolved further, That Mangyans may only solicit homesteads on this reservation
providing that said homestead applications are previously recommended by the
provincial governor."
2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro
was approved by the Secretary of the Interior of February 21, 1917.
3. That on December 4, 1917, the provincial governor of Mindoro issued
executive order No. 2 which says:
"Whereas the provincial board, by Resolution No. 25, current series, has selected a
site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes
in Mindoro.
"Whereas said resolution has been duly approve by the Honorable, the Secretary of
the Interior, on February 21, 1917.
"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the
provisions of section 2145 of the revised Administrative Code, do hereby direct that all
the Mangyans in the townships of Naujan and Pola and the Mangyans east of the
Baco River including those in the districts of Dulangan and Rubi's place in Calapan, to
take up their habitation on the site of Tigbao, Naujan Lake, not later than December
31, 1917.
"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the revised
Administrative Code."
4. That the resolution of the provincial board of Mindoro copied in paragraph 1
and the executive order of the governor of the same province copied in paragraph 3,
were necessary measures for the protection of the Mangyanes of Mindoro as well as
the protection of public forests in which they roam, and to introduce civilized customs
among them.
5. That Rubi and those living in his rancheria have not fixed their dwelling within
the reservation of Tigbao and are liable to be punished in accordance with section
2759 of Act No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being
detained by the sheriff of Mindoro but if he is so detained it must be by virtue of the
provisions of articles Nos. 2145 and 2759 of Act No. 2711.
It thus appears that the provincial governor of Mindoro and the provincial board thereof
directed the Manguianes in question to take up their habitation in Tigbao, a site on the
shore of Lake Naujan, selected by the provincial governor and approved by the
provincial board. The action was taken in accordance with section 2145 of the
Administrative Code of 1917, and was duly approved by the Secretary of the Interior
48
as required by said action. Petitioners, however, challenge the validity of this section of
the Administrative Code. This, therefore, becomes the paramount question which the
court is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial
governor. With the prior approval of the Department Head, the provincial governor
of any province in which non-Christian inhabitants are found is authorized, when such
a course is deemed necessary in the interest of law and order, to direct such
inhabitants to take up their habitation on sites on unoccupied public lands to be
selected by him an approved by the provincial board.
In connection with the above-quoted provisions, there should be noted section 2759 of
the same Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any
non-Christian who shall refuse to comply with the directions lawfully given by a
provincial governor, pursuant to section two thousand one hundred and forty-five of
this Code, to take up habitation upon a site designated by said governor shall upon
conviction be imprisonment for a period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to Philippine law.
The genealogical tree of this section, if we may be permitted to use such terminology,
would read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397;
section 2 of various special provincial laws, notably of Act No. 547, specifically relating
to the Manguianes; section 69, Act No. 387.
Section 2145 and its antecedent laws make use of the term "non-Christians." This
word, as will later be disclosed, is also found in varying forms in other laws of the
Philippine Islands. In order to put the phrase in its proper category, and in order to
understand the policy of the Government of the Philippine Islands with reference to the
uncivilized elements of the Islands, it is well first of all to set down a skeleton history of
the attitude assumed by the authorities towards these "non-Christians," with particular
regard for the legislation on the subject.
II. HISTORY.
A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.
The most important of the laws of the Indies having reference to the subject at hand
are compiled in Book VI, Title III, in the following language.
LAW I.
The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551.
Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13,
1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of
1573. In San Lorenzo, on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and the
evangelical law, and in order that they may forget the blunders of their ancient rites
and ceremonies to the end that they may live in harmony and in a civilized manner, it
has always been endeavored, with great care and special attention, to use all the
means most convenient to the attainment of these purposes. To carry out this work
with success, our Council of the Indies and other religious persons met at various
times; the prelates of new Spain assembled by order of Emperor Charles V of glorious
memory in the year one thousand five hundred and forty-six all of which meetings
were actuated with a desire to serve God an our Kingdom. At these meetings it was
resolved that indios be made to live in communities, and not to live in places divided
and separated from one another by sierras and mountains, wherein they are deprived
of all spiritual and temporal benefits and wherein they cannot profit from the aid of our
ministers and from that which gives rise to those human necessities which men are
obliged to give one another. Having realized that convenience of this resolution, our
kings, our predecessors, by different orders, have entrusted and ordered the viceroys,
presidents, and governors to execute with great care and moderation the
concentration of the indios into reducciones; and to deal with their doctrine with such
forbearance and gentleness, without causing inconveniences, so that those who would
not presently settle and who would see the good treatment and the protection of those
already in settlements would, of their own accord, present themselves, and it is
ordained that they be not required to pay taxes more than what is ordered. Because
the above has been executed in the greater part of our Indies, we hereby order and
decree that the same be complied with in all the remaining parts of the Indies, and the
encomederos shall entreat compliance thereof in the manner and form prescribed by
the laws of this title.
xxx xxx xxx
LAW VIII.
Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.
THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF
THIS LAW.
The places wherein the pueblos and reducciones shall be formed should have the
facilities of waters. lands, and mountains, ingress and egress, husbandry and
passageway of one league long, wherein the indios can have their live stock that they
may not be mixed with those of the Spaniards.
LAW IX.
Philip II at Toledo, on February 19, 1956.
THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS
PREVIOUSLY HELD BY THEM.
With more good-will and promptness, the indios shall be concentrated in reducciones.
Provided they shall not be deprived of the lands and granaries which they may have in
the places left by them. We hereby order that no change shall be made in this respect,
and that they be allowed to retain the lands held by them previously so that they may
cultivate them and profit therefrom.
xxx xxx xxx
LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING,
VICEROY, OR COURT.
49
No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter
or to remove the pueblos or the reducciones once constituted and founded, without our
express order or that of the viceroy, president, or the royal district court, provided,
however, that the encomenderos, priests, or indios request such a change or consent
to it by offering or giving information to that en. And, because these claims are often
made for private interests and not for those of the indios, we hereby order that this law
be always complied with, otherwise the change will be considered fraudulently
obtained. The penalty of one thousand pesos shall be imposed upon the judge or
encomendero who should violate this law.
LAW XV.
Philip III at Madrid, on October 10, 1618.
THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO
SHALL BE "INDIOS."
We order that in each town and reduccion there be a mayor, who should be an indio of
the same reduccion; if there be more than eighty houses, there should be two mayors
and two aldermen, also indios; and, even if the town be a big one, there should,
nevertheless, be more than two mayors and four aldermen, If there be less than eighty
indios but not less than forty, there should be not more than one mayor and one
alderman, who should annually elect nine others, in the presence of the priests , as is
the practice in town inhabited by Spaniards and indios.
LAW XXI.
Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8,
1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip
IV, at Madrid, on October 1 and December 17, 1646. For this law and the one
following, see Law I, Tit. 4, Book 7.
THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS,
NEGROES, "MESTIZOS," AND MULATTOES.
We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to
live in the reducciones and towns and towns of the indios, because it has been found
that some Spaniards who deal, trade, live, and associate with the indios are men of
troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and useless
men; and, to avoid the wrongs done them, the indios would leave their towns and
provinces; and the negroes, mestizos, and mulattoes, besides maltreating them and
utilizing their services, contaminate them with their bad customs, idleness, and also
some of their blunders and vices which may corrupt and pervert the goal which we
desire to reach with regard to their salvation, increase, and tranquillity. We hereby
order the imposition of grave penalties upon the commission of the acts above-
mentioned which should not be tolerated in the towns, and that the viceroys,
presidents, governors, and courts take great care in executing the law within their
powers and avail themselves of the cooperation of the ministers who are truly honest.
As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are
children of indias and born among them, and who are to inherit their houses and
haciendas, they all not be affected by this law, it appearing to be a harsh thing to
separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to improve
the condition of the less advanced inhabitants of the Islands by concentrating them in
"reducciones," is found in the Decree of the Governor-General of the Philippine Islands
of January 14, 1881, reading as follows:
It is a legal principle as well as a national right that every inhabitant of a territory
recognized as an integral part of a nation should respect and obey the laws in force
therein; while, on other hand, it is the duty to conscience and to humanity for all
governments to civilize those backward races that might exist in the nation, and which
living in the obscurity of ignorance, lack of all the nations which enable them to grasp
the moral and material advantages that may be acquired in those towns under the
protection and vigilance afforded them by the same laws.
It is equally highly depressive to our national honor to tolerate any longer the
separation and isolation of the non-Christian races from the social life of the civilized
and Christian towns; to allow any longer the commission of depredations, precisely in
the Island of Luzon wherein is located the seat of the representative of the
Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves with
this most important question, and that much has been heretofore accomplished with
the help and self-denial of the missionary fathers who have even sacrificed their lives
to the end that those degenerate races might be brought to the principles of
Christianity, but the means and the preaching employed to allure them have been
insufficient to complete the work undertaken. Neither have the punishments imposed
been sufficient in certain cases and in those which have not been guarded against,
thus giving and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state of things,
taking into account the prestige which the country demands and the inevitable duty
which every government has in enforcing respect and obedience to the national laws
on the part of all who reside within the territory under its control, I have proceeded in
the premises by giving the most careful study of this serious question which involves
important interests for civilization, from the moral and material as well as the political
standpoints. After hearing the illustrious opinions of all the local authorities,
ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after
finding the unanimous conformity of the meeting held with the Archbishop of Manila,
the Bishops of Jaro and Cebu, and the provincial prelates of the orders of the
Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting
of the Council of Authorities, held for the object so indicated, I have arrived at an
intimate conviction of the inevitable necessity of proceeding in a practical manner for
the submission of the said pagan and isolated races, as well as of the manner and the
only form of accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these objects, I
hereby promulgate the following:
DECREE.
1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date,
to be governed by the common law, save those exceptions prescribed in this decree
which are bases upon the differences of instructions, of the customs, and of the
necessities of the different pagan races which occupy a part of its territory.
50
2. The diverse rules which should be promulgated for each of these races
which may be divided into three classes; one, which comprises those which live
isolated and roaming about without forming a town nor a home; another, made up of
those subdued pagans who have not as yet entered completely the social life; and the
third, of those mountain and rebellious pagans shall be published in their respective
dialects, and the officials, priests, and missionaries of the provinces wherein they are
found are hereby entrusted in the work of having these races learn these rules. These
rules shall have executive character, beginning with the first day of next April, and, as
to their compliance, they must be observed in the manner prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed, from
now on, with all the means which their zeal may suggest to them, to the taking of the
census of the inhabitants of the towns or settlement already subdued, and shall adopt
the necessary regulations for the appointment of local authorities, if there be none as
yet; for the construction of courts and schools, and for the opening or fixing up of
means of communication, endeavoring, as regards the administrative organization of
the said towns or settlements, that this be finished before the first day of next July, so
that at the beginning of the fiscal year they shall have the same rights and obligations
which affect the remaining towns of the archipelago, with the only exception that in the
first two years they shall not be obliged to render personal services other than those
previously indicated.
4. So long as these subdued towns or settlements are located infertile lands
appropriate for cultivation, the inhabitants thereof shall not be obliged to move their
dwelling-houses; and only in case of absolute necessity shall a new residence be fixed
for them, choosing for this purpose the place most convenient for them and which
prejudices the least their interest; and, in either of these cases, an effort must be made
to establish their homes with the reach of the sound of the bell.
5. For the protection and defense of these new towns, there shall be established
an armed force composed precisely of native Christian, the organization and service of
which shall be determined in a regulations based upon that of the abolished Tercios de
Policia (division of the Guardia Civil).
6. The authorities shall see to it that the inhabitants of the new towns
understand all the rights and duties affecting them and the liberty which they have as
to where and now they shall till their lands and sell the products thereof, with the only
exception of the tobacco which shall be bought by the Hacienda at the same price and
conditions allowed other producers, and with the prohibition against these new towns
as well as the others from engaging in commerce of any other transaction with the
rebellious indios, the violation of which shall be punished with deportation.
7. In order to properly carry out this express prohibition, the limits of the territory
of the rebellious indios shall be fixed; and whoever should go beyond the said limits
shall be detained and assigned governmentally wherever convenient.
8. For the purpose of assisting in the conversion of the pagans into the fraternity
of the Catholic Church, all by this fact along be exempt for eight years from rendering
personal labor.
9. The authorities shall offer in the name of the State to the races not subdued
(aetas and mountains igorrots the following advantages in returns for their voluntary
submission: to live in towns; unity among their families; concession of good lands and
the right to cultivate them in the manner they wish and in the way them deem most
productive; support during a year, and clothes upon effecting submission; respect for
their habits and customs in so far as the same are not opposed to natural law; freedom
to decide of their own accord as to whether they want to be Christians or not; the
establishment of missions and families of recognized honesty who shall teach, direct,
protect, and give them security and trust them; the purchase or facility of the sale of
their harvests; the exemption from contributions and tributes for ten years and from the
quintas (a kind of tax) for twenty years; and lastly, that those who are governed by the
local authorities as the ones who elect such officials under the direct charge of the
authorities of the province or district.
10. The races indicated in the preceding article, who voluntarily admit the
advantages offered, shall, in return, have the obligation of constituting their new towns,
of constructing their town hall, schools, and country roads which place them in
communication with one another and with the Christians; provided, the location of
these towns be distant from their actual residences, when the latter do not have the
good conditions of location and cultivations, and provided further the putting of families
in a place so selected by them be authorized in the towns already constituted.
11. The armed force shall proceed to the prosecution and punishment of the
tribes, that, disregarding the peace, protection, and advantages offered them, continue
in their rebellious attitude on the first of next April, committing from now on the crimes
and vexations against the Christian towns; and for the this purposes, the Captain
General's Office shall proceed with the organization of the divisions of the Army which,
in conjunction with the rural guards (cuadrilleros), shall have to enter the territory of
such tribes. On the expiration of the term, they shall destroy their dwelling-houses,
labors, and implements, and confiscate their products and cattle. Such a punishment
shall necessarily be repeated twice a year, and for this purpose the military
headquarters shall immediately order a detachment of the military staff to study the
zones where such operations shall take place and everything conducive to the
successful accomplishment of the same.
12. The chiefs of provinces, priests, and missioners, local authorities, and other
subordinates to my authorities, local authorities, and other subordinates to may
authority, civil as well as military authorities, shall give the most effective aid and
cooperation to the said forces in all that is within the attributes and the scope of the
authority of each.
13. With respect to the reduccion of the pagan races found in some of the
provinces in the southern part of the Archipelago, which I intend to visit, the preceding
provisions shall conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-
Royal Patron, a council or permanent commission which shall attend to and decide all
the questions relative to the application of the foregoing regulations that may be
brought to it for consultations by the chiefs of provinces and priests and missionaries.
15. The secondary provisions which may be necessary, as a complement to the
foregoing, in brining about due compliance with this decree, shall be promulgated by
the respective official centers within their respective jurisdictions. (Gaceta de Manila,
No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.)
51
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the question
as to the best method for dealing with the primitive inhabitants has been a perplexing
one.
1. Organic law.
The first order of an organic character after the inauguration of the American
Government in the Philippines was President McKinley's Instructions to the
Commission of April 7, 1900, later expressly approved and ratified by section 1 of the
Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have
remained undisturbed by subsequent congressional legislation. One paragraph of
particular interest should here be quoted, namely:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt the
same course followed by Congress in permitting the tribes of our North American
Indians to maintain their tribal organization and government and under which many of
these tribes are now living in peace and contentment, surrounded by civilization to
which they are unable or unwilling to conform. Such tribal governments should,
however, be subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to prevent barbarous
practices and introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an
Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to
provide for a legislative body and, with this end in view, to name the prerequisites for
the organization of the Philippine Assembly. The Philippine Legislature, composed of
the Philippine Commission and the Philippine Assembly, was to have jurisdiction over
the Christian portion of the Islands. The Philippine Commission was to retain exclusive
jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of
Congress of August 29, 1916, commonly known as the Jones Law. This transferred the
exclusive legislative jurisdiction and authority theretofore exercised by the Philippine
Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands
into twelve senatorial districts, the twelfth district to be composed of the Mountain
Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The
Governor-General of the Philippine Islands was authorized to appoint senators and
representatives for the territory which, at the time of the passage of the Jones Law,
was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16).
The law establish a bureau to be known as the "Bureau of non-Christian Tribes" which
shall have general supervision over the public affairs of the inhabitants which are
represented in the Legislature by appointed senators and representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line between
the territory not inhabited by Moros or other non-Christian tribes, and the territory
which Moros or other non-Christian tribes, and the territory which is inhabited by Moros
or other non-Christian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts of the
Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49
concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal
Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the
city of Manila; Act No. 7887, providing for the organization and government of the Moro
Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the
Township Government Act; Act No. 1667, relating to the organization of settlements;
Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the
Department of Mindanao and Sulu. The major portion of these laws have been carried
forward into the Administrative Codes of 1916 an d1917.
Of more particular interest are certain special laws concerning the government of the
primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9,
1902, by the United States Philippine Commission, having reference to the Province of
Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855,
1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan,
Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya,
Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of
these laws, because referring to the Manguianes, we insert Act No. 547:
No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL
GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.
By authority of the United States, be it enacted by the Philippine Commission, that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not
progressed sufficiently in civilization to make it practicable to bring them under any
form of municipal government, the provincial governor is authorized, subject to the
approval of the Secretary of the Interior, in dealing with these Manguianes to appoint
officers from among them, to fix their designations and badges of office, and to
prescribe their powers and duties: Provided, That the powers and duties thus
prescribed shall not be in excess of those conferred upon township officers by Act
Numbered Three hundred and eighty-seven entitled "An Act providing for the
establishment of local civil Governments in the townships and settlements of Nueva
Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor
is further authorized, when he deems such a course necessary in the interest of law
and order, to direct such Manguianes to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.
Manguianes who refuse to comply with such directions shall upon conviction be
imprisonment for a period not exceeding sixty days.
SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his
province to acquire the knowledge and experience necessary for successful local
popular government, and his supervision and control over them shall be exercised to
this end, an to the end that law and order and individual freedom shall be maintained.
SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may be
organized under the provisions of sections one to sixty-seven, inclusive, of Act
Numbered three hundred and eighty-seven, as a township, and the geographical limits
of such township shall be fixed by the provincial board.
SEC. 5. The public good requiring the speedy enactment of this bill, the passage of
the same is hereby expedited in accordance with section two of 'An Act prescribing the
52
order of procedure by the Commission in the enactment of laws,' passed September
twenty-sixth, nineteen hundred.
SEC. 6. This Act shall take effect on its passage.
Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed by Act No.
1396 and 1397. The last named Act incorporated and embodied the provisions in
general language. In turn, Act No. 1397 was repealed by the Administrative Code of
1916. The two Administrative Codes retained the provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines and a
settled and consistent practice with reference to the methods to be followed for their
advancement.
C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in varying
forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to the
Commission.
The most commonly accepted usage has sanctioned the term "non-Christian tribes."
These words are to be found in section 7 of the Philippine Bill and in section 22 of the
Jones Law. They are also to be found in Act No. 253 of the Philippines Commission,
establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine
Legislature, carried forward into sections 701-705 of the Administrative Code of 1917,
reestablishing this Bureau. Among other laws which contain the phrase, there can be
mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have
been the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming
into being of a Filipinized legislature. These terms can be found in sections 2076,
2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426,
Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the
Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission.
The Administrative Code specifically provides that the term "non-Christian" shall
include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec.
2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.)
D. MEANING OF TERM "NON-CHRISTIAN."
If we were to follow the literal meaning of the word "non-Christian," it would of course
result in giving to it a religious signification. Obviously, Christian would be those who
profess the Christian religion, and non-Christians, would be those who do not profess
the Christian religion. In partial corroboration of this view, there could also be cited
section 2576 of the last Administrative Code and certain well-known authorities, as
Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine
Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See
Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-
Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.)
Not content with the apparent definition of the word, we shall investigate further to
ascertain what is its true meaning.
In one sense, the word can have a geographical signification. This is plainly to be seen
by the provisions of many laws. Thus, according to the Philippine Bill, the authority of
the Philippine Assembly was recognized in the "territory" of the Islands not inhabited
by Moros or other non-Christian tribes. Again, the Jones Law confers similar
recognition in the authorization of the twelfth senatorial district for the "territory not now
represented in the Philippine Assembly." The Philippines Legislature has, time and
again, adopted acts making certain other acts applicable to that "part" of the Philippine
Islands inhabited by Moros or other non-Christian tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative Code.
The first section of this article, preceding section 2145, makes the provisions of the
article applicable only in specially organized provinces. The specially organized
provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and
Palawan. These are the provinces to which the Philippine Legislature has never seen
fit to give all the powers of local self-government. They do not, however, exactly
coincide with the portion of the Philippines which is not granted popular representation.
Nevertheless, it is still a geographical description.
It is well-known that within the specially organized provinces, there live persons some
of who are Christians and some of whom are not Christians. In fact, the law specifically
recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)
If the religious conception is not satisfactory, so against the geographical conception is
likewise inadquate. The reason it that the motive of the law relates not to a particular
people, because of their religion, or to a particular province because of its location, but
the whole intent of the law is predicated n the civilization or lack of civilization of the
inhabitants.
At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words
usually introduce the term. "The so-called non-Christian" is a favorite expression. The
Secretary of the Interior who for so many years had these people under his jurisdiction,
recognizing the difficulty of selecting an exact designation, speaks of the "backward
Philippine peoples, commonly known as the 'non-Christian tribes."' (See Hearings
before the Committee on the Philippines, United States Senate, Sixty-third Congress,
third session on H.R. 18459, An Act to declare the purpose of the People of the United
States as to the future political status of the Philippine Islands and to provide a more
autonomous government for the Islands, pp. 346, 351; letter of the Secretary of the
Interior of June 30, 1906, circulated by the Executive Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of civilization, is
substantiated by reference to legislative, judicial, and executive authority.
The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and
sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For
instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct
"systematic investigations with reference to non-Christian tribes . . . with special view
to determining the most practicable means for bringing about their advancement in
civilization and material property prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the case of
United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as
to the effect of a tribal marriage in connection with article 423 of the Penal code
concerning the husband who surprises his wife in the act of adultery. In discussing the
point, the court makes use of the following language:
53
. . . we are not advised of any provision of law which recognizes as legal a tribal
marriage of so-called non-Christians or members of uncivilized tribes, celebrated
within that province without compliance with the requisites prescribed by General
Orders no. 68. . . . We hold also that the fact that the accused is shown to be a
member of an uncivilized tribe, of a low order of intelligence, uncultured and
uneducated, should be taken into consideration as a second marked extenuating
circumstance.
Of much more moment is the uniform construction of execution officials who have
been called upon to interpret and enforce the law. The official who, as a member of the
Philippine Commission, drafted much of the legislation relating to the so-called
Christians and who had these people under his authority, was the former Secretary of
the Interior. Under date of June 30, 1906, this official addressed a letter to all governor
of provinces, organized under the Special Provincial Government Act, a letter which
later received recognition by the Governor-General and was circulated by the
Executive Secretary, reading as follows:
Sir: Within the past few months, the question has arisen as to whether people who
were originally non-Christian but have recently been baptized or who are children of
persons who have been recently baptized are, for the purposes of Act 1396 and 1397,
to be considered Christian or non-Christians.
It has been extremely difficult, in framing legislation for the tribes in these islands
which are not advanced far in civilization, to hit upon any suitable designation which
will fit all cases. The number of individual tribes is so great that it is almost out of the
question to enumerate all of them in an Act. It was finally decided to adopt the
designation 'non-Christians' as the one most satisfactory, but the real purpose of the
Commission was not so much to legislate for people having any particular religious
belief as for those lacking sufficient advancement so that they could, to their own
advantage, be brought under the Provincial Government Act and the Municipal Code.
The mere act of baptism does not, of course, in itself change the degree of civilization
to which the person baptized has attained at the time the act of baptism is performed.
For practical purposes, therefore, you will give the member of so-called "wild tribes" of
your province the benefit of the doubt even though they may recently have embraced
Christianity.
The determining factor in deciding whether they are to be allowed to remain under the
jurisdiction of regularly organized municipalities or what form of government shall be
afforded to them should be the degree of civilization to which they have attained and
you are requested to govern yourself accordingly.
I have discussed this matter with the Honorable, the Governor-General, who concurs
in the opinion above expressed and who will have the necessary instructions given to
the governors of the provinces organized under the Provincial Government Act.
(Internal Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member of this
court, has the following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but while no
other better classification has as yet been made the present classification should be
allowed to stand . . . I believe the term carries the same meaning as the expressed in
the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is
indicative of the degree of civilization rather than of religious denomination, for the hold
that it is indicative of religious denomination will make the law invalid as against that
Constitutional guaranty of religious freedom.
Another official who was concerned with the status of the non-Christians, was the
Collector of Internal Revenue. The question arose for ruling relatives to the cedula
taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the
Interior was requested on the point, who, by return indorsement, agreed with the
interpretation of the Collector of Internal Revenue. This Construction of the Collector of
Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal
Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214):
The internal revenue law exempts "members of non-Christian tribes" from the payment
of cedula taxes. The Collector of Internal Revenue has interpreted this provision of law
to mean not that persons who profess some form of Christian worship are alone
subject to the cedula tax, and that all other person are exempt; he has interpreted it to
mean that all persons preserving tribal relations with the so-called non-Christian tribes
are exempt from the cedula tax, and that all others, including Jews, Mohammedans,
Confucians, Buddists, etc., are subject to said tax so long as they live in cities or
towns, or in the country in a civilized condition. In other words, it is not so much a
matter of a man's form of religious worship or profession that decides whether or not
he is subject to the cedula tax; it is more dependent on whether he is living in a
civilized manner or is associated with the mountain tribes, either as a member thereof
or as a recruit. So far, this question has not come up as to whether a Christian,
maintaining his religious belief, but throwing his lot and living with a non-Christian tribe,
would or would not be subject to the cedula tax. On one occasion a prominent Hebrew
of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as
he was not a Christian. This Office, however, continued to collect cedula taxes from all
the Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large
proportion of the cedula taxes paid in this city are paid by men belonging to the
nationalities mentioned. Chinamen, Arabs and other s are quite widely scattered
throughout the Islands, and a condition similar to that which exist in Manila also exists
in most of the large provincial towns. Cedula taxes are therefore being collected by this
Office in all parts of these Islands on the broad ground that civilized people are subject
to such taxes, and non-civilized people preserving their tribal relations are not subject
thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.
On September 17, 1910, the Collector of Internal Revenue addressed circular letter
No. 327, approved by the Secretary of Finance and Justice, to all provincial treasurers.
This letter in part reads:
In view of the many questions that have been raised by provincial treasurers regarding
cedula taxes due from members of non-Christian tribes when they come in from the
hills for the purposes of settling down and becoming members of the body politic of the
Philippine Islands, the following clarification of the laws governing such questions and
digest of rulings thereunder is hereby published for the information of all concerned:
54
Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the
fact that they do not profess Christianity, but because of their uncivilized mode of life
and low state of development. All inhabitants of the Philippine Islands classed as
members of non-Christian tribes may be divided into three classes in so far as the
cedula tax law is concerned . . .
Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode
of life, severs whatever tribal relations he may have had and attaches himself civilized
community, belonging a member of the body politic, he thereby makes himself subject
to precisely the same law that governs the other members of that community and from
and after the date when he so attaches himself to the community the same cedula and
other taxes are due from him as from other members thereof. If he comes in after the
expiration of the delinquency period the same rule should apply to him as to persons
arriving from foreign countries or reaching the age of eighteen subsequent to the
expiration of such period, and a regular class A, D, F, or H cedula, as the case may be,
should be furnished him without penalty and without requiring him to pay the tax for
former years.
In conclusion, it should be borne in mind that the prime factors in determining whether
or not a man is subject to the regular cedula tax is not the circumstance that he does
or does not profess Christianity, nor even his maintenance of or failure to maintain
tribal relations with some of the well known wild tribes, but his mode of life, degree of
advancement in civilization and connection or lack of connection with some civilized
community. For this reason so called "Remontados" and "Montescos" will be classed
by this office as members of non-Christian tribes in so far as the application of the
Internal Revenue Law is concerned, since, even though they belong to no well
recognized tribe, their mode of life, degree of advancement and so forth are practically
the same as those of the Igorrots and members of other recognized non-Christina
tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.
The two circular above quoted have since been repealed by Bureau of Internal
Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of
Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa,
Secretary of Finance and Justice. Section 30 of the regulations is practically a
transcript of Circular Letter No. 327.
The subject has come before the Attorney-General for consideration. The Chief of
Constabulary request the opinion of the Attorney-General as to the status of a non-
Christian who has been baptized by a minister of the Gospel. The precise questions
were these: "Does he remain non-Christian or is he entitled to the privileges of a
Christian? By purchasing intoxicating liquors, does he commit an infraction of the law
and does the person selling same lay himself liable under the provision of Act No.
1639?" The opinion of Attorney-General Avancea, after quoting the same authorities
hereinbefore set out, concludes:
In conformity with the above quoted constructions, it is probable that is probable that
the person in question remains a non-Christian, so that, in purchasing intoxicating
liquors both he and the person selling the same make themselves liable to prosecution
under the provisions of Act No. 1639. At least, I advise you that these should be the
constructions place upon the law until a court shall hold otherwise.
Solicitor-General Paredes in his brief in this case says:
With respect to the meaning which the phrase non-Christian inhabitants has in the
provisions of the Administrative code which we are studying, we submit that said
phrase does not have its natural meaning which would include all non-Christian
inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but
simply refers to those uncivilized members of the non-Christian tribes of the
Philippines who, living without home or fixed residence, roam in the mountains,
beyond the reach of law and order . . .
The Philippine Commission in denominating in its laws that portion of the inhabitants of
the Philippines which live in tribes as non-Christian tribes, as distinguished from the
common Filipinos which carry on a social and civilized life, did not intended to
establish a distinction based on the religious beliefs of the individual, but, without
dwelling on the difficulties which later would be occasioned by the phrase, adopted the
expression which the Spanish legislation employed to designate the uncivilized portion
of the inhabitants of the Philippines.
The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741
of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to
members of uncivilized tribes of the Philippines, not only because this is the evident
intention of the law, but because to give it its lateral meaning would make the law null
and unconstitutional as making distinctions base the religion of the individual.
The Official Census of 1903, in the portion written by no less an authority than De.
David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the
population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes.
(Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director
of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in
the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing
Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the
Bureau of Insular Affairs, War Department, a sub-division under the title non-Christian
tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which
sufficiently shows that the terms refers to culture and not to religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different
executive officials, specifically, join in the proposition that the term "non-Christian"
refers, not to religious belief, but, in a way , to geographical area, and, more directly, to
natives of the Philippine Islands of a law grade of civilization, usually living in tribal
relationship apart from settled communities.
E. THE MANGUIANES.
The so-called non-Christians are in various state approaching civilization. The
Philippine Census of 1903 divided them into four classes. Of the third class, are the
Manguianes (or Mangyans) of Mindoro.
55
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de
los nombres de Rozas de Filipinas, says:
In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan,"
"negro." It may be that the use of this word is applicable to a great number of Filipinos,
but nevertheless it has been applied only to certain inhabitants of Mindoro. Even in
primitive times without doubt this name was given to those of that island who bear it to-
day, but its employed in three Filipino languages shows that the radical ngian had in all
these languages a sense to-day forgotten. In Pampango this ending still exists and
signifies "ancient," from which we can deduce that the name was applied to men
considered to be the ancient inhabitants, and that these men were pushed back into
the interior by the modern invaders, in whose language they were called the
"ancients."
The Manguianes are very low in culture. They have considerable Negrito blood and
have not advanced beyond the Negritos in civilization. They are a peaceful, timid,
primitive, semi-nomadic people. They number approximately 15,000. The manguianes
have shown no desire for community life, and, as indicated in the preamble to Act No.
547, have not progressed sufficiently in civilization to make it practicable to bring them
under any form of municipal government. (See Census of the Philippine (Islands
[1903], vol. I, pp. 22, 23, 460.)
III. COMPARATIVE THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the policy
adopted by the United States for the Indian Tribes. The methods followed by the
Government of the Philippines Islands in its dealings with the so-called non-Christian
people is said, on argument, to be practically identical with that followed by the United
States Government in its dealings with the Indian tribes. Valuable lessons, it is
insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been
treated as "in a state of pupilage." The recognized relation between the Government of
the United States and the Indians may be described as that of guardian and ward. It is
for the Congress to determine when and how the guardianship shall be terminated.
The Indians are always subject to the plenary authority of the United States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore
mentioned, tells how the Congress passed an Act in 1819 "for promoting those
humane designs of civilizing the neighboring Indians." After quoting the Act, the
opinion goes on "This act avowedly contemplates the preservation of the Indian
nations as an object sought by the United States, and proposes to effect this object by
civilizing and converting them from hunters into agriculturists."
A leading case which discusses the status of the Indians is that of the United States
vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the
United States Constitution which gives Congress "power to regulate commerce with
foreign nations, and among the several States, and with the Indian tribes." The court
then proceeds to indicate a brief history of the position of the Indians in the United
States (a more extended account of which can be found in Marshall's opinion in
Worcester vs. Georgia, supra), as follows:
The relation of the Indian tribes living within the borders of the United States, both
before and since the Revolution, to the people of the United States, has always been
an anomalous one and of a complex character.
Following the policy of the European Governments in the discovery of American
towards the Indians who were found here, the colonies before the Revolution and the
States and the United States since, have recognized in the Indians a possessory right
to the soil over which they roamed and hunted and established occasional villages. But
they asserted an ultimate title in the land itself, by which the Indian tribes were
forbidden to sell or transfer it to other nations or peoples without the consent of this
paramount authority. When a tribe wished to dispose of its lands, or any part of it, or
the State or the United States wished to purchase it, a treaty with the tribe was the
only mode in which this could be done. The United States recognized no right in
private persons, or in other nations, to make such a purchase by treaty or otherwise.
With the Indians themselves these relation are equally difficult to define. They were,
and always have been, regarded as having a semi-independent position when they
preserved their tribal relations; not as States, not as nation not a possessed of the fall
attributes of sovereignty, but as a separate people, with the power of regulating their
internal and social relations, and thus far not brought under the laws of the Union or of
the State within whose limits they resided.
The opinion then continues:
It seems to us that this (effect of the law) is within the competency of Congress. These
Indian tribes are the wards of the nation. The are communities dependent on the
United States. dependent largely for their daily food. Dependent for their political
rights. They owe no allegiance to the States, and receive from the no protection.
Because of the local ill feeling, the people of the States where they are found are often
their deadliest enemies. From their very weakness and helplessness, so largely due to
the course of dealing of the Federal Government with them and the treaties in which it
has been promised, there arise the duty of protection, and with it the power. This has
always been recognized by the Executive and by Congress, and by this court,
whenever the question has arisen . . . The power of the General Government over
these remnants of race once powerful, now weak and diminished in numbers, is
necessary to their protection, as well as to the safety of those among whom they dwell.
it must exist in that government, because it never has existed anywhere else, because
the theater of its exercise is within the geographical limits of the United States,
because it has never been denied, and because it alone can enforce its laws on all the
tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to
be considered was whether the status of the Pueblo Indians and their lands was such
that Congress could prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood. The court looked to the
reports of the different superintendent charged with guarding their interests and founds
that these Indians are dependent upon the fostering care and protection of the
government "like reservation Indians in general." Continuing, the court said "that during
the Spanish dominion, the Indians of the pueblos were treated as wards requiring
special protection, where subjected to restraints and official supervisions in the
alienation of their property." And finally, we not the following: "Not only does the
Constitution expressly authorize Congress to regulate commerce with the Indians
tribes, but long-continued legislative and executive usage and an unbroken current of
56
judicial decisions have attributed to the United States as a superior and civilized nation
the power and the duty of exercising a fostering care and protection over all dependent
Indian communities within its borders, whether within its original territory or territory
subsequently acquired, and whether within or without the limits of a state."
With reference to laws affecting the Indians, it has been held that it is not within the
power of the courts to overrule the judgment of Congress. For very good reason, the
subject has always been deemed political in nature, not subject to the jurisdiction of
the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488; U.S.
vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs. Georgia,
supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall,
616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169 U.S.., 264;
Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204 U.S.,
415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911],
221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla,
281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart any
public land as an Indian reservation, it has full authority to pass such laws and
authorize such measures as may be necessary to give to the Indians thereon full
protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S., 577.)
All this borne out by long-continued legislative and executive usage, and an unbroken
line of judicial decisions.
The only case which is even remotely in point and which, if followed literally, might
result in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed.
Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued
against Brigadier General George Crook at the relation of Standing Bear and other
Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in
substance that the relators are Indians who have formerly belonged to the Ponca tribe
of Indians, now located in the Indian Territory; that they had some time previously
withdrawn from the tribe, and completely severed their tribal relations therewith, and
had adopted the general habits of the whites, and were then endeavoring to maintain
themselves by their own exertions, and without aid or assistance from the general
government; that whilst they were thus engaged, and without being guilty of violating
any of the laws of the United States, they were arrested and restrained of their liberty
by order of the respondent, George Crook. The substance of the return to the writ was
that the relators are individual members of, and connected with, the Ponca tribe of
Indians; that they had fled or escaped form a reservation situated some place within
the limits of the Indian Territory had departed therefrom without permission from the
Government; and, at the request of the Secretary of the Interior, the General of the
Army had issued an order which required the respondent to arrest and return the
relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had
caused the relators to be arrested on the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal imprisonment
by habeas corpus. The second question, of much greater importance, related to the
right of the Government to arrest and hold the relators for a time, for the purpose of
being returned to the Indian Territory from which it was alleged the Indian escaped. In
discussing this question, the court reviewed the policy the Government had adopted in
its dealing with the friendly tribe of Poncase. Then, continuing, the court said: "Laws
passed for the government of the Indian country, and for the purpose of regulating
trade and intercourse with the Indian tribes, confer upon certain officers of the
Government almost unlimited power over the persons who go upon the reservations
without lawful authority . . . Whether such an extensive discretionary power is wisely
vested in the commissioner of Indian affairs or not , need not be questioned. It is
enough to know that the power rightfully exists, and, where existing, the exercise of the
power must be upheld." The decision concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United
States, and has, therefore, the right to sue out a writ of habeas corpus in a federal
court, or before a federal judge, in all cases where he may be confined or in custody
under color of authority of the United States or where he is restrained of liberty in
violation of the constitution or laws of the United States.
2. That General George Crook, the respondent, being commander of the military
department of the Platte, has the custody of the relators, under color of authority of the
United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to the
Indian Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the more
fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of
happiness," so long as they obey the laws and do not trespass on forbidden ground.
And,
5. Being restrained of liberty under color of authority of the United States, and in
violation of the laws thereof, the relators must be discharged from custody, and it is so
ordered.
As far as the first point is concerned, the decision just quoted could be used as
authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the
Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act, and as
such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse
[1895], 70 Fed., 598.) We so decide.
As to the second point the facts in the Standing Bear case an the Rubi case are not
exactly identical. But even admitting similarity of facts, yet it is known to all that Indian
reservations do exist in the United States, that Indians have been taken from different
parts of the country and placed on these reservation, without any previous consultation
as to their own wishes, and that, when once so located, they have been made to
remain on the reservation for their own good and for the general good of the country. If
any lesson can be drawn form the Indian policy of the United States, it is that the
determination of this policy is for the legislative and executive branches of the
government and that when once so decided upon, the courts should not interfere to
upset a carefully planned governmental system. Perhaps, just as may forceful reasons
exists for the segregation as existed for the segregation of the different Indian tribes in
the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.
The first constitutional objection which confronts us is that the Legislature could not
delegate this power to provincial authorities. In so attempting, it is contended, the
Philippine Legislature has abdicated its authority and avoided its full responsibility.
57
That the maxim of Constitutional Law forbidding the delegation of legislative power
should be zealously protected, we agree. An understanding of the rule will, however,
disclose that it has not bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided by Judge
Ranney, and since followed in a multitude of case, namely: "The true distinction
therefore is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion as
to its execution, to be exercised under and in pursuance of the law. The first cannot be
done; to the later no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs.
Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice
Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the
Legislature to an executive department or official. The Legislature may make decisions
of executive departments of subordinate official thereof, to whom t has committed the
execution of certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed.,
141.) The growing tendency in the decision is to give prominence to the "necessity" of
the case.
Is not all this exactly what the Legislature has attempted to accomplish by the
enactment of section 21454 of the Administrative Code? Has not the Legislature
merely conferred upon the provincial governor, with the approval of the provincial
board and the Department Head, discretionary authority as to the execution of the
law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to
require the Secretary of the Interior to approve the selection and taking of one hundred
and sixty acres by the relator out of the lands ceded to the United States by the
Wichita and affiliated bands of Indians. Section 463 of the United States Revised
Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of the
Secretary of the Interior, and agreeably to such regulations as the President may
prescribe, have the management of all Indian affairs, and of all matters arising out to
the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially
in view of the long established practice of the Department, before saying that this
language was not broad enough to warrant a regulation obviously made for the welfare
of the rather helpless people concerned. The power of Congress is not doubted. The
Indians have been treated as wards of the nation. Some such supervision was
necessary, and has been exercised. In the absence of special provisions naturally it
would be exercised by the Indian Department." (See also as corroborative authority, it
any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the
previous decisions of the United States Supreme Court: U.S. vs. Lane [1914], 232
U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An
exception to the general rule. sanctioned by immemorial practice, permits the central
legislative body to delegate legislative powers to local authorities. The Philippine
Legislature has here conferred authority upon the Province of Mindoro, to be exercised
by the provincial governor and the provincial board.
Who but the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge "when such as course is
deemed necessary in the interest of law and order?" As officials charged with the
administration of the province and the protection of its inhabitants, who but they are
better fitted to select sites which have the conditions most favorable for improving the
people who have the misfortune of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of
legislative power by the Philippine Legislature to provincial official and a department
head.
B. RELIGIOUS DISCRIMINATION
The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf
of his unknown clients, says that "The statute is perfectly clear and unambiguous. In
limpid English, and in words as plain and unequivocal as language can express, it
provides for the segregation of 'non-Christians' and none other." The inevitable result,
them, is that the law "constitutes an attempt by the Legislature to discriminate between
individuals because of their religious beliefs, and is, consequently, unconstitutional."
Counsel's premise once being conceded, his arguments is answerable the
Legislature must be understood to mean what it has plainly expressed; judicial
construction is then excluded; religious equality is demanded by the Organic Law; the
statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as
hereinbefore stated, we do not feel free to discard the long continued meaning given to
a common expression, especially as classification of inhabitants according to religious
belief leads the court to what it should avoid, the nullification of legislative action. We
hold that the term "non-Christian" refers to natives of the Philippines Islands of a low
grade of civilization, and that section 2145 of the Administrative Code of 1917, does
not discriminate between individuals an account of religious differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the President's
instructions of to the Commission, the Philippine Bill, and the Jones Law, providing
"That no law shall be enacted in said Islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the equal
protection of the laws." This constitutional limitation is derived from the Fourteenth
Amendment to the United States Constitution and these provisions, it has been said
"are universal in their application, to all persons within the territorial jurisdiction, without
regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins
[1886], 118 U.S., 356.) The protection afforded the individual is then as much for the
non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible with the
possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)
Liberty is the creature of law, essentially different from that authorized licentiousness
that trespasses on right. That authorized licentiousness that trespasses on right. It is a
legal and a refined idea, the offspring of high civilization, which the savage never
understood, and never can understand. Liberty exists in proportion to wholesome
restraint; the more restraint on others to keep off from us, the more liberty we have . . .
that man is free who is protected from injury. (II Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not being forced to
do what one ought not do desire. (Montesque, spirit of the Laws.)
58
Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to
one's own will. It is only freedom from restraint under conditions essential to the equal
enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890],
137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold restraints to which
every person is necessarily subject for the common good. On any other basis,
organized society could not exist with safety to its members. Society based on the rule
that each one is a law unto himself would soon be confronted with disorder and
anarchy. Real liberty for all could not exist under the operation of a principle which
recognizes the right of each individual person to use his own, whether in respect of his
person or his property, regardless of the injury that may be done to others . . . There is,
of course, a sphere with which the individual may asserts the supremacy of his own
will, and rightfully dispute the authority of any human government especially of any
free government existing under a written Constitution to interfere with the exercise
of that will. But it is equally true that in very well-ordered society charged with the duty
of conserving the safety of its members, the rights of the individual in respect of his
liberty may at times, under the pressure of great dangers, be subjected to such
restraint to be enforced by reasonable regulations, as the safety of the general public
may demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason and the
upright and honorable conscience of the individual. (Apolinario Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a
civilized community, consistently with the peaceful enjoyment of like freedom in others.
The right to Liberty guaranteed by the Constitution includes the right to exist and the
right to be free from arbitrary personal restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the faculties with which he has been
endowed by this Creator, subject only to such restraints as are necessary for the
common welfare. As enunciated in a long array of authorities including epoch-making
decisions of the United States Supreme Court, Liberty includes the right of the citizens
to be free to use his faculties in all lawful ways; to live an work where he will; to earn
his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to
enter into all contracts which may be proper, necessary, and essential to his carrying
out these purposes to a successful conclusion. The chief elements of the guaranty are
the right to contract, the right to choose one's employment, the right to labor, and the
right of locomotion.
In general, it may be said that Liberty means the opportunity to do those things which
are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4
Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179
U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902],
114 Wis., 530. See 6 R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is plainly
apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty
regulated by law." Implied in the term is restraint by law for the good of the individual
and for the greater good of the peace and order of society and the general well-being.
No man can do exactly as he pleases. Every man must renounce unbridled license.
The right of the individual is necessarily subject to reasonable restraint by general law
for the common good. Whenever and wherever the natural rights of citizen would, if
exercises without restraint, deprive other citizens of rights which are also and equally
natural, such assumed rights must yield to the regulation of law. The Liberty of the
citizens may be restrained in the interest of the public health, or of the public order and
safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-
Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al.,
66.)
None of the rights of the citizen can be taken away except by due process of law.
Daniel Webster, in the course of the argument in the Dartmouth College Case before
the United States Supreme Court, since a classic in forensic literature, said that the
meaning of "due process of law" is, that "every citizen shall hold his life, liberty,
property, an immunities under the protection of the general rules which govern
society." To constitute "due process of law," as has been often held, a judicial
proceeding is not always necessary. In some instances, even a hearing and notice are
not requisite a rule which is especially true where much must be left to the discretion of
the administrative officers in applying a law to particular cases. (See McGehee, Due
Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of
liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age
and customs, or newly devised in the discretion of the legislative power, in furtherance
of the public good, which regards and preserves these principles of liberty and justice,
must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.)
"Due process of law" means simply . . . "first, that there shall be a law prescribed in
harmony with the general powers of the legislative department of the Government;
second, that this law shall be reasonable in its operation; third, that it shall be enforced
according to the regular methods of procedure prescribed; and fourth, that it shall be
applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan
[1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What
is due process of law depends on circumstances. It varies with the subject-matter and
necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not
infringed by a statute which is applicable to all of a class. The classification must have
a reasonable basis and cannot be purely arbitrary in nature.
We break off with the foregoing statement, leaving the logical deductions to be made
later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen Amendment to
the United States Constitution particularly as found in those portions of Philippine
Organic Law providing "That slavery shall not exist in said Islands; nor shall
involuntary servitude exist except as a punishment for crime whereof the party shall
have been duly convicted." It is quite possible that the Thirteenth Amendment, since
reaching to "any place subject to" the "jurisdiction" of the United States, has force in
the Philippine. However this may be, the Philippine Legislature has, by adoption, with
necessary modifications, of sections 268 to 271 inclusive of the United States Criminal
Code, prescribed the punishment for these crimes. Slavery and involuntary servitude,
together wit their corollary, peonage, all denote "a condition of enforced, compulsory
service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest
59
scope is possibly involuntary servitude. It has been applied to any servitude in fact
involuntary, no matter under what form such servitude may have been disguised.
(Bailey vs. Alabama [1910], 219 U.S., 219.)
So much for an analysis of those constitutional provisions on which petitioners rely for
their freedom. Next must come a description of the police power under which the State
must act if section 2145 is to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary to note at
this moment is the farreaching scope of the power, that it has become almost possible
to limit its weep, and that among its purposes is the power to prescribe regulations to
promote the health, peace, morals, education, and good order of the people, and to
legislate so as to increase the industries of the State, develop its resources and add to
is wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are
not interested in is the right of the government to restrain liberty by the exercise of the
police power.
"The police power of the State," one court has said, . . . "is a power coextensive with
self-protection, and is not inaptly termed the 'law of overruling necessity.' It may be
said to be that inherent and plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill
Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation, the
judiciary rarely attempt to dam the on rushing power of legislative discretion, provided
the purposes of the law do not go beyond the great principles that mean security for
the public welfare or do not arbitrarily interfere with the right of the individual.
The Government of the Philippine Islands has both on reason and authority the right to
exercise the sovereign police power in the promotion of the general welfare and the
public interest. "There can be not doubt that the exercise of the police power of the
Philippine Government belongs to the Legislature and that this power is limited only by
the Acts of Congress and those fundamental principles which lie at the foundation of all
republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580;
U.S. vs. Pompeya [1915], 31 Phil., 245.)
With the foregoing approximation of the applicable basic principles before us, before
finally deciding whether any constitutional provision has indeed been violated by
section 2145 of the Administrative Code, we should endeavor to ascertain the intention
of the Legislature in enacting this section. If legally possible, such legislative intention
should be effectuated.
F. LEGISLATIVE INTENT.
The preamble of the resolution of the provincial board of Mindoro which set apart the
Tigbao reservation, it will be remembered, assigned as reasons fort the action, the
following: (1) The failure of former attempts for the advancement of the non-Christian
people of the province; and (2) the only successfully method for educating the
Manguianes was to oblige them to live in a permanent settlement. The Solicitor-
General adds the following; (3) The protection of the Manguianes; (4) the protection of
the public forests in which they roam; (5) the necessity of introducing civilized customs
among the Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of the motives
for its selection, the following:
To inform himself of the conditions of those Manguianes who were taken together to
Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place.
There he found that the site selected is a good one; that creditable progress has been
made in the clearing of forests, construction of buildings, etc., that there appears to be
encouraging reaction by the boys to the work of the school the requirements of which
they appear to meet with enthusiastic interest after the first weeks which are
necessarily a somewhat trying period for children wholly unaccustomed to orderly
behaviour and habit of life. He also gathered the impression that the results obtained
during the period of less than one year since the beginning of the institution definitely
justify its continuance and development.
Of course, there were many who were protesting against that segregation. Such was
naturally to be expected. But the Secretary of the Interior, upon his return to Manila,
made the following statement to the press:
"It is not deemed wise to abandon the present policy over those who prefer to live a
nomadic life and evade the influence of civilization. The Government will follow its
policy to organize them into political communities and to educate their children with the
object of making them useful citizens of this country. To permit them to live a wayfaring
life will ultimately result in a burden to the state and on account of their ignorance, they
will commit crimes and make depredation, or if not they will be subject to involuntary
servitude by those who may want to abuse them."
The Secretary of the Interior, who is the official charged with the supervision of all the
non-Christian people, has adopted as the polaris of his administration "the
advancement of the non-Christian elements of our population to equality and
unification with the highly civilized Christian inhabitants." This is carried on by the
adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of seminomadic
race are induced to leave their wild habitat and settle in organized communities.
(b) The extension of the public school system and the system of public health
throughout the regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to
facilitate their development and the extention of government control.
(d) Construction of roads and trials between one place and another among non-
Christians, to promote social and commercial intercourse and maintain amicable
relations among them and with the Christian people.
(e) Pursuance of the development of natural economic resources, especially
agriculture.
(f) The encouragement of immigration into, and of the investment of private
capital in, the fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued among the
non-Christian people. These people are being taught and guided to improve their living
conditions in order that they may fully appreciate the benefits of civilization. Those of
them who are still given to nomadic habits are being persuaded to abandon their wild
habitat and settle in organized settlements. They are being made to understand that it
is the purpose of the Government to organize them politically into fixed and per
60
manent communities, thus bringing them under the control of the Government, to aid
them to live and work, protect them from involuntary servitude and abuse, educate
their children, and show them the advantages of leading a civilized life with their
civilized brothers. In short, they are being impressed with the purposes and objectives
of the Government of leading them to economic, social, and political equality, and
unification with the more highly civilized inhabitants of the country. (See Report of the
Department for 1917.)
The fundamental objective of governmental policy is to establish friendly relations with
the so-called non-Christians, and to promote their educational, agricultural, industrial,
and economic development and advancement in civilization. (Note Acts Nos. 2208,
2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines
the aim of the Government towards the non-Christian people in the following
unequivocal terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos and
foster by all adequate means and in a systematical, rapid, and complete manner the
moral, material, economic, social, and political development of those regions, always
having in view the aim of rendering permanent the mutual intelligence between, and
complete fusion of, all the Christian and non-Christian elements populating the
provinces of the Archipelago. (Sec. 3.)
May the Manguianes not be considered, as are the Indians in the United States,
proper wards of the Filipino people? By the fostering care of a wise Government, may
not these unfortunates advance in the "habits and arts of civilization?" Would it be
advisable for the courts to intrude upon a plan, carefully formulated, and apparently
working out for the ultimate good of these people?
In so far as the Manguianes themselves are concerned, the purpose of the
Government is evident. Here, we have on the Island of Mindoro, the Manguianes,
leading a nomadic life, making depredations on their more fortunate neighbors,
uneducated in the ways of civilization, and doing nothing for the advancement of the
Philippine Islands. What the Government wished to do by bringing than into a
reservation was to gather together the children for educational purposes, and to
improve the health and morals was in fine, to begin the process of civilization. this
method was termed in Spanish times, "bringing under the bells." The same idea
adapted to the existing situation, has been followed with reference to the Manguianes
and other peoples of the same class, because it required, if they are to be improved,
that they be gathered together. On these few reservations there live under restraint in
some cases, and in other instances voluntarily, a few thousands of the uncivilized
people. Segregation really constitutes protection for the manguianes.
Theoretically, one may assert that all men are created free and equal. Practically, we
know that the axiom is not precisely accurate. The Manguianes, for instance, are not
free, as civilized men are free, and they are not the equals of their more fortunate
brothers. True, indeed, they are citizens, with many but not all the rights which
citizenship implies. And true, indeed, they are Filipinos. But just as surely, the
Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag
upon the progress of the State.
In so far as the relation of the Manguianes to the State is concerned, the purposes of
the Legislature in enacting the law, and of the executive branch in enforcing it, are
again plain. Settlers in Mindoro must have their crops and persons protected from
predatory men, or they will leave the country. It is no argument to say that such crimes
are punished by the Penal Code, because these penalties are imposed after
commission of the offense and not before. If immigrants are to be encouraged to
develop the resources of the great Islands of Mindoro, and its, as yet, unproductive
regions, the Government must be in a position to guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the
State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to
protect itself from destruction must prod on the laggard and the sluggard. The great
law of overwhelming necessity is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:
Living a nomadic and a wayfaring life and evading the influence of civilization, they
(the manguianes) are engaged in the works of destruction burning and destroying
the forests and making illegal caigins thereon. Not bringing any benefit to the State
but instead injuring and damaging its interests, what will ultimately become of these
people with the sort of liberty they wish to preserve and for which they are now fighting
in court? They will ultimately become a heavy burden to the State and on account of
their ignorance they will commit crimes and make depredations, or if not they will be
subjected to involuntary servitude by those who may want to abuse them.
There is no doubt in my mind that this people a right conception of liberty and does not
practice liberty in a rightful way. They understand liberty as the right to do anything
they will going from one place to another in the mountains, burning and destroying
forests and making illegal caigins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can they
allege that they are being deprived thereof without due process of law?
xxx xxx xxx
But does the Constitutional guaranty that 'no person shall be deprived of his liberty
without due process of law' apply to a class of persons who do not have a correct idea
of what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government
should not adopt any measures looking to the welfare and advancement of the class of
persons in question. It will mean that this people should be let along in the mountains
and in a permanent state of savagery without even the remotest hope of coming to
understand liberty in its true and noble sense.
In dealing with the backward population, like the Manguianes, the Government has
been placed in the alternative of either letting them alone or guiding them in the path of
civilization. The latter measure was adopted as the one more in accord with humanity
and with national conscience.
xxx xxx xxx
The national legislation on the subject of non-Christian people has tended more and
more towards the education and civilization of such people and fitting them to be
citizens. The progress of those people under the tutelage of the Government is indeed
encouraging and the signs of the times point to a day which is not far distant when
they will become useful citizens. In the light of what has already been accomplished
61
which has been winning the gratitude of most of the backward people, shall we give up
the noble work simply because a certain element, believing that their personal
interests would be injured by such a measure has come forward and challenged the
authority of the Government to lead this people in the pat of civilization? Shall we, after
expending sweat, treasure, and even blood only to redeem this people from the claws
of ignorance and superstition, now willingly retire because there has been erroneously
invoked in their favor that Constitutional guaranty that no person shall be deprived of
his liberty without due process of law? To allow them to successfully invoke that
Constitutional guaranty at this time will leave the Government without recourse to
pursue the works of civilizing them and making them useful citizens. They will thus left
in a permanent state of savagery and become a vulnerable point to attack by those
who doubt, nay challenge, the ability of the nation to deal with our backward brothers.
The manguianes in question have been directed to live together at Tigbao. There they
are being taught and guided to improve their living conditions. They are being made to
understand that they object of the government is to organize them politically into fixed
and permanent communities. They are being aided to live and work. Their children are
being educated in a school especially established for them. In short, everything is
being done from them in order that their advancement in civilization and material
prosperity may be assured. Certainly their living together in Tigbao does not make
them slaves or put them in a condition compelled to do services for another. They do
not work for anybody but for themselves. There is, therefore, no involuntary servitude.
But they are compelled to live there and prohibited from emigrating to some other
places under penalty of imprisonment. Attention in this connection is invited to the fact
that this people, living a nomadic and wayfaring life, do not have permanent individual
property. They move from one place to another as the conditions of living warrants,
and the entire space where they are roving about is the property of the nation, the
greater part being lands of public domain. Wandering from one place to another on the
public lands, why can not the government adopt a measure to concentrate them in a
certain fixed place on the public lands, instead of permitting them to roam all over the
entire territory? This measure is necessary both in the interest of the public as owner
of the lands about which they are roving and for the proper accomplishment of the
purposes and objectives of the government. For as people accustomed to nomadic
habit, they will always long to return to the mountains and follow a wayfaring life, and
unless a penalty is provinced for, you can not make them live together and the noble
intention of the Government of organizing them politically will come to naught.
G. APPLICATION AND CONCLUSION.
Our exhaustive study should have left us in a position to answer specific objections
and to reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to go
where he pleases. Could be not, however, be kept away from certain localities ? To
furnish an example from the Indian legislation. The early Act of Congress of 1802 (2
U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess
absolute freedom of locomotion. Again the same law provided for the apprehension of
marauding Indians. Without any doubt, this law and other similar were accepted and
followed time and again without question.
It is said that, if we hold this section to be constitutional, we leave this weak and
defenseless people confined as in a prison at the mercy of unscrupulous official. What,
it is asked, would be the remedy of any oppressed Manguian? The answer would
naturally be that the official into whose hands are given the enforcement of the law
would have little or not motive to oppress these people; on the contrary, the
presumption would all be that they would endeavor to carry out the purposes of the law
intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there
always exists the power of removal in the hands of superior officers, and the courts are
always open for a redress of grievances. When, however, only the validity of the law is
generally challenged and no particular case of oppression is called to the attention of
the courts, it would seems that the Judiciary should not unnecessarily hamper the
Government in the accomplishment of its laudable purpose.
The question is above all one of sociology. How far, consistently with freedom, may the
right and liberties of the individual members of society be subordinated to the will of
the Government? It is a question which has assailed the very existence of government
from the beginning of time. Now purely an ethical or philosophical subject, nor now to
be decided by force, it has been transferred to the peaceful forum of the Judiciary. In
resolving such an issue, the Judiciary must realize that the very existence of
government renders imperatives a power to restrain the individual to some extent,
dependent, of course, on the necessities of the class attempted to be benefited. As to
the particular degree to which the Legislature and the Executive can go in interfering
with the rights of the citizen, this is, and for a along time to come will be, impossible for
the courts to determine.
The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms
of economics and political theory, are of the past. The modern period has shown as
widespread belief in the amplest possible demonstration of governmental activity. The
courts unfortunately have sometimes seemed to trial after the other two branches of
the government in this progressive march.
Considered, therefore, purely as an exercise of the police power, the courts cannot
fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an
unusual exercise of that power. But a great malady requires an equally drastic remedy.
Further, one cannot hold that the liberty of the citizen is unduly interfered without when
the degree of civilization of the Manguianes is considered. They are restrained for their
own good and the general good of the Philippines. Nor can one say that due process
of law has not been followed. To go back to our definition of due process of law and
equal protection of the law, there exists a law ; the law seems to be reasonable; it is
enforced according to the regular methods of procedure prescribed; and it applies alike
to all of a class.
As a point which has been left for the end of this decision and which, in case of doubt,
would lead to the determination that section 2145 is valid. it the attitude which the
courts should assume towards the settled policy of the Government. In a late decision
with which we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern
Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes:
We can seen objection to the application of public policy as a ratio decidendi. Every
really new question that comes before the courts is, in the last analysis, determined on
that theory, when not determined by differentiation of the principle of a prior case or
62
line of cases, or by the aid of analogies furnished by such prior case. In balancing
conflicting solutions, that one is perceived to tip the scales which the court believes will
best promote the public welfare in its probable operation as a general rule or principle.
But public policy is not a thing inflexible. No court is wise enough to forecast its
influence in all possible contingencies. Distinctions must be made from time to time as
sound reason and a true sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the so-called
non-Christians has been in vain, if we fail to realize that a consistent governmental
policy has been effective in the Philippines from early days to the present. The idea to
unify the people of the Philippines so that they may approach the highest conception of
nationality. If all are to be equal before the law, all must be approximately equal in
intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be
populated, and its fertile regions must be developed. The public policy of the
Government of the Philippine Islands is shaped with a view to benefit the Filipino
people as a whole. The Manguianes, in order to fulfill this governmental policy, must
be confined for a time, as we have said, for their own good and the good of the
country.
Most cautiously should the power of this court to overrule the judgment of the
Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the
best considered case is toward non-interference on the part of the courts whenever
political ideas are the moving consideration. Justice Holmes, in one of the aphorisms
for which he is justly famous, said that "constitutional law, like other mortal
contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in
the final decision of the many grave questions which this case presents, the courts
must take "a chance," it should be with a view to upholding the law, with a view to the
effectuation of the general governmental policy, and with a view to the court's
performing its duty in no narrow and bigoted sense, but with that broad conception
which will make the courts as progressive and effective a force as are the other
departments of the Government.
We are of the opinion that action pursuant to section 2145 of the Administrative Code
does not deprive a person of his liberty without due process of law and does not deny
to him the equal protection of the laws, and that confinement in reservations in
accordance with said section does not constitute slavery and involuntary servitude. We
are further of the opinion that section 2145 of the Administrative Code is a legitimate
exertion of the police power, somewhat analogous to the Indian policy of the United
States. Section 2145 of the Administrative Code of 1917 is constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus
can, therefore, not issue. This is the true ruling of the court. Costs shall be taxes
against petitioners. So ordered.
Arellano, C.J., Torres and Avancea, JJ., concur.
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one
which this application for habeas corpus submits for decision. While hardly to be
expected to be met with in this modern epoch of triumphant democracy, yet, after all,
the cause presents no great difficulty if there is kept in the forefront of our minds the
basic principles of popular government, and if we give expression to the paramount
purpose for which the courts, as an independent power of such a government, were
constituted. The primary question is Shall the judiciary permit a government of the
men instead of a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which
might prove profitable reading for other departments of the government, the facts are
these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to
exterminate vice, ordered the segregated district for women of ill repute, which had
been permitted for a number of years in the city of Manila, closed. Between October 16
and October 25, 1918, the women were kept confined to their houses in the district by
the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao,
as laborers; with some government office for the use of the coastguard cutters
Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate,
about midnight of October 25, the police, acting pursuant to orders from the chief of
police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended
upon the houses, hustled some 170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The women were given no opportunity
to collect their belongings, and apparently were under the impression that they were
being taken to a police station for an investigation. They had no knowledge that they
were destined for a life in Mindanao. They had not been asked if they wished to depart
from that region and had neither directly nor indirectly given their consent to the
deportation. The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of Constabulary soldiers. The
two steamers with their unwilling passengers sailed for Davao during the night of
October 25.
The vessels reached their destination at Davao on October 29. The women were
landed and receipted for as laborers by Francisco Sales, provincial governor of Davao,
and by Feliciano Yigo and Rafael Castillo. The governor and the hacendero Yigo,
who appear as parties in the case, had no previous notification that the women were
prostitutes who had been expelled from the city of Manila. The further happenings to
these women and the serious charges growing out of alleged ill-treatment are of public
interest, but are not essential to the disposition of this case. Suffice it to say, generally,
that some of the women married, others assumed more or less clandestine relations
with men, others went to work in different capacities, others assumed a life unknown
and disappeared, and a goodly portion found means to return to Manila.
63
To turn back in our narrative, just about the time the Corregidor and the Negros were
putting in to Davao, the attorney for the relatives and friends of a considerable number
of the deportees presented an application for habeas corpus to a member of the
Supreme Court. Subsequently, the application, through stipulation of the parties, was
made to include all of the women who were sent away from Manila to Davao and, as
the same questions concerned them all, the application will be considered as including
them. The application set forth the salient facts, which need not be repeated, and
alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor
of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by
certain unknown parties. The writ was made returnable before the full court. The city
fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts
relative to sequestration and deportation, and prayed that the writ should not be
granted because the petitioners were not proper parties, because the action should
have been begun in the Court of First Instance for Davao, Department of Mindanao
and Sulu, because the respondents did not have any of the women under their custody
or control, and because their jurisdiction did not extend beyond the boundaries of the
city of Manila. According to an exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good salaries, on the haciendas of Yigo and
Governor Sales. In open court, the fiscal admitted, in answer to question of a member
of the court, that these women had been sent out of Manila without their consent. The
court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor
of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco
Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of
Davao, to bring before the court the persons therein named, alleged to be deprived of
their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own
expense. On motion of counsel for petitioners, their testimony was taken before the
clerk of the Supreme Court sitting as commissioners. On the day named in the order,
December 2nd, 1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of those who had
been able to come back to Manila through their own efforts, were notified by the police
and the secret service to appear before the court. The fiscal appeared, repeated the
facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial
governor of Davao and the answer thereto, and telegrams that had passed between
the Director of Labor and the attorney for that Bureau then in Davao, and offered
certain affidavits showing that the women were contained with their life in Mindanao
and did not wish to return to Manila. Respondents Sales answered alleging that it was
not possible to fulfill the order of the Supreme Court because the women had never
been under his control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers. Respondent Yigo
answered alleging that he did not have any of the women under his control and that
therefore it was impossible for him to obey the mandate. The court, after due
deliberation, on December 10, 1918, promulgated a second order, which related that
the respondents had not complied with the original order to the satisfaction of the court
nor explained their failure to do so, and therefore directed that those of the women not
in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and
Yigo on January 13, 1919, unless the women should, in written statements voluntarily
made before the judge of first instance of Davao or the clerk of that court, renounce
the right, or unless the respondents should demonstrate some other legal motives that
made compliance impossible. It was further stated that the question of whether the
respondents were in contempt of court would later be decided and the reasons for the
order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of
certain detectives and policemen, and of the provincial governor of Davao, was taken
before the clerk of the Supreme Court sitting as commissioner and the clerk of the
Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the
respondents technically presented before the Court the women who had returned to
the city through their own efforts and eight others who had been brought to Manila by
the respondents. Attorneys for the respondents, by their returns, once again recounted
the facts and further endeavored to account for all of the persons involved in the
habeas corpus. In substance, it was stated that the respondents, through their
representatives and agents, had succeeded in bringing from Davao with their consent
eight women; that eighty-one women were found in Davao who, on notice that if they
desired they could return to Manila, transportation fee, renounced the right through
sworn statements; that fifty-nine had already returned to Manila by other means, and
that despite all efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first formally
asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of
the police force of the city of Manila, Feliciano Yigo, an hacendero of Davao, Modesto
Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of
Manila, in contempt of court. The city fiscal requested that the replica al memorandum
de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be
struck from the record.
In the second order, the court promised to give the reasons for granting the writ of
habeas corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy
women were isolated from society, and then at night, without their consent and without
any opportunity to consult with friends or to defend their rights, were forcibly hustled on
board steamers for transportation to regions unknown. Despite the feeble attempt to
prove that the women left voluntarily and gladly, that such was not the case is shown
by the mere fact that the presence of the police and the constabulary was deemed
necessary and that these officers of the law chose the shades of night to cloak their
secret and stealthy acts. Indeed, this is a fact impossible to refute and practically
admitted by the respondents.
With this situation, a court would next expect to resolve the question By authority of
what law did the Mayor and the Chief of Police presume to act in deporting by duress
these persons from Manila to another distant locality within the Philippine Islands? We
turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act
of congress. The Governor-General can order the eviction of undesirable aliens after a
hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of
the Revised Ordinances of the city of Manila provide for the conviction and punishment
by a court of justice of any person who is a common prostitute. Act No. 899 authorizes
the return of any citizen of the United States, who may have been convicted of
64
vagrancy, to the homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being common prostitutes.
Always a law! Even when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to
some law or order. But one can search in vain for any law, order, or regulation, which
even hints at the right of the Mayor of the city of Manila or the chief of police of that city
to force citizens of the Philippine Islands and these women despite their being in a
sense lepers of society are nevertheless not chattels but Philippine citizens protected
by the same constitutional guaranties as are other citizens to change their domicile
from Manila to another locality. On the contrary, Philippine penal law specifically
punishes any public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so
important as to be found in the Bill of Rights of the Constitution. Under the American
constitutional system, liberty of abode is a principle so deeply imbedded in
jurisprudence and considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine Islands, even the
President of the United States, who has often been said to exercise more power than
any king or potentate, has no such arbitrary prerogative, either inherent or express.
Much less, therefore, has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at their mere behest or
even for the most praiseworthy of motives, render the liberty of the citizen so insecure,
then the presidents and chiefs of police of one thousand other municipalities of the
Philippines have the same privilege. If these officials can take to themselves such
power, then any other official can do the same. And if any official can exercise the
power, then all persons would have just as much right to do so. And if a prostitute
could be sent against her wishes and under no law from one locality to another within
the country, then officialdom can hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be
taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor
condemn him, but by lawful judgment of his peers or by the law of the land. We will sell
to no man, we will not deny or defer to any man either justice or right." (Magna Charta,
9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is
above the law. The courts are the forum which functionate to safeguard individual
liberty and to punish official transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only supreme power in our
system of government, and every man who by accepting office participates in its
functions is only the more strongly bound to submit to that supremacy, and to observe
the limitations which it imposes upon the exercise of the authority which it gives." (U.S.
vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the
same high tribunal in another case, "that one man may be compelled to hold his life, or
the means of living, or any material right essential to the enjoyment of life, at the mere
will of another, seems to be intolerable in any country where freedom prevails, as
being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.)
All this explains the motive in issuing the writ of habeas corpus, and makes clear why
we said in the very beginning that the primary question was whether the courts should
permit a government of men or a government of laws to be established in the
Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of
the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may
recoup money damages. It may still rest with the parties in interest to pursue such an
action, but it was never intended effectively and promptly to meet any such situation as
that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands
provides:
Any public officer not thereunto authorized by law or by regulations of a general
character in force in the Philippines who shall banish any person to a place more than
two hundred kilometers distant from his domicile, except it be by virtue of the judgment
of a court, shall be punished by a fine of not less than three hundred and twenty-five
and not more than three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a
general character in force in the Philippines who shall compel any person to change
his domicile or residence shall suffer the penalty of destierro and a fine of not less than
six hundred and twenty-five and not more than six thousand two hundred and fifty
pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting
officers find that any public officer has violated this provision of law, these prosecutors
will institute and press a criminal prosecution just as vigorously as they have defended
the same official in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the instant proceedings.
To quote the words of Judge Cooley in a case which will later be referred to "It
would be a monstrous anomaly in the law if to an application by one unlawfully
confined, ta be restored to his liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might be continued indefinitely until the guilty
party was tried and punished therefor by the slow process of criminal procedure." (In
the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was
devised and exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom. Any further
rights of the parties are left untouched by decision on the writ, whose principal purpose
is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three
specific objections to its issuance in this instance. The fiscal has argued (l) that there is
a defect in parties petitioners, (2) that the Supreme Court should not a assume
jurisdiction, and (3) that the person in question are not restrained of their liberty by
respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and that perforce they could
not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were
relatives and friends of the deportees. The way the expulsion was conducted by the
city officials made it impossible for the women to sign a petition for habeas corpus. It
was consequently proper for the writ to be submitted by persons in their behalf. (Code
of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its
zealous regard for personal liberty, even makes it the duty of a court or judge to grant
a writ of habeas corpus if there is evidence that within the court's jurisdiction a person
65
is unjustly imprisoned or restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First
Instance of Davao or should have been made returnable before that court. It is a
general rule of good practice that, to avoid unnecessary expense and inconvenience,
petitions for habeas corpus should be presented to the nearest judge of the court of
first instance. But this is not a hard and fast rule. The writ of habeas corpus may be
granted by the Supreme Court or any judge thereof enforcible anywhere in the
Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec.
526.) Whether the writ shall be made returnable before the Supreme Court or before
an inferior court rests in the discretion of the Supreme Court and is dependent on the
particular circumstances. In this instance it was not shown that the Court of First
Instance of Davao was in session, or that the women had any means by which to
advance their plea before that court. On the other hand, it was shown that the
petitioners with their attorneys, and the two original respondents with their attorney,
were in Manila; it was shown that the case involved parties situated in different parts of
the Islands; it was shown that the women might still be imprisoned or restrained of
their liberty; and it was shown that if the writ was to accomplish its purpose, it must be
taken cognizance of and decided immediately by the appellate court. The failure of the
superior court to consider the application and then to grant the writ would have
amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the
writ was prayed for, says counsel, the parties in whose behalf it was asked were under
no restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the
mayor and the chief of police did not extend beyond the city limits. At first blush, this is
a tenable position. On closer examination, acceptance of such dictum is found to be
perversive of the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty.
The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude freedom of action
is sufficient. The forcible taking of these women from Manila by officials of that city,
who handed them over to other parties, who deposited them in a distant region,
deprived these women of freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal belongings, they were
prevented from exercising the liberty of going when and where they pleased. The
restraint of liberty which began in Manila continued until the aggrieved parties were
returned to Manila and released or until they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The
chief executive of any municipality in the Philippines could forcibly and illegally take a
private citizen and place him beyond the boundaries of the municipality, and then,
when called upon to defend his official action, could calmly fold his hands and claim
that the person was under no restraint and that he, the official, had no jurisdiction over
this other municipality. We believe the true principle should be that, if the respondent is
within the jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to do so.
Even if the party to whom the writ is addressed has illegally parted with the custody of
a person before the application for the writ is no reason why the writ should not issue.
If the mayor and the chief of police, acting under no authority of law, could deport
these women from the city of Manila to Davao, the same officials must necessarily
have the same means to return them from Davao to Manila. The respondents, within
the reach of process, may not be permitted to restrain a fellow citizen of her liberty by
forcing her to change her domicile and to avow the act with impunity in the courts,
while the person who has lost her birthright of liberty has no effective recourse. The
great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem, a close examination of the authorities
fails to reveal any analogous case. Certain decisions of respectable courts are
however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date
as to whether or not a writ of habeas corpus would issue from the Supreme Court to a
person within the jurisdiction of the State to bring into the State a minor child under
guardianship in the State, who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court at this time was notable. It was
composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On
the question presented the court was equally divided. Campbell, J., with whom
concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the
most distinguished American judges and law-writers, with whom concurred Christiancy,
J., held that the writ should issue. Since the opinion of Justice Campbell was
predicated to a large extent on his conception of the English decisions, and since, as
will hereafter appear, the English courts have taken a contrary view, only the following
eloquent passages from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the
present writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a
half have been expended upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could declare in his speech on
the petition of right that "Magna Charta was such a fellow that he will have no
sovereign," and after the extension of its benefits and securities by the petition of right,
bill of rights and habeas corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is important that it be determined
without delay, that the legislature may apply the proper remedy, as I can not doubt they
would, on the subject being brought to their notice. . . .
The second proposition that the statutory provisions are confined to the case of
imprisonment within the state seems to me to be based upon a misconception as to
the source of our jurisdiction. It was never the case in England that the court of king's
bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes
were not passed to give the right, but to compel the observance of rights which
existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is,
that it is directed to and served upon, not the person confined, but his jailor. It does not
reach the former except through the latter. The officer or person who serves it does not
unbar the prison doors, and set the prisoner free, but the court relieves him by
compelling the oppressor to release his constraint. The whole force of the writ is spent
66
upon the respondent, and if he fails to obey it, the means to be resorted to for the
purposes of compulsion are fine and imprisonment. This is the ordinary mode of
affording relief, and if any other means are resorted to, they are only auxiliary to those
which are usual. The place of confinement is, therefore, not important to the relief, if
the guilty party is within reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is not increased by
the confinement being beyond the limits of the state, except as greater distance may
affect it. The important question is, where the power of control exercised? And I am
aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac.
Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had
been taken out of English by the respondent. A writ of habeas corpus was issued by
the Queen's Bench Division upon the application of the mother and her husband
directing the defendant to produce the child. The judge at chambers gave defendant
until a certain date to produce the child, but he did not do so. His return stated that the
child before the issuance of the writ had been handed over by him to another; that it
was no longer in his custody or control, and that it was impossible for him to obey the
writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M.
R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at
the Royal Courts of Justice immediately after the receipt of the writ, together with the
cause of her being taken and detained. That is a command to bring the child before
the judge and must be obeyed, unless some lawful reason can be shown to excuse
the nonproduction of the child. If it could be shown that by reason of his having lawfully
parted with the possession of the child before the issuing of the writ, the defendant had
no longer power to produce the child, that might be an answer; but in the absence of
any lawful reason he is bound to produce the child, and, if he does not, he is in
contempt of the Court for not obeying the writ without lawful excuse. Many efforts have
been made in argument to shift the question of contempt to some anterior period for
the purpose of showing that what was done at some time prior to the writ cannot be a
contempt. But the question is not as to what was done before the issue of the writ. The
question is whether there has been a contempt in disobeying the writ it was issued by
not producing the child in obedience to its commands. (The Queen vs. Bernardo
[1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews,
12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890],
24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was
directed to the defendant to have before the circuit court of the District of Columbia
three colored persons, with the cause of their detention. Davis, in his return to the writ,
stated on oath that he had purchased the negroes as slaves in the city of Washington;
that, as he believed, they were removed beyond the District of Columbia before the
service of the writ of habeas corpus, and that they were then beyond his control and
out of his custody. The evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus. The court held the
return to be evasive and insufficient, and that Davis was bound to produce the
negroes, and Davis being present in court, and refusing to produce them, ordered that
he be committed to the custody of the marshall until he should produce the negroes, or
be otherwise discharged in due course of law. The court afterwards ordered that Davis
be released upon the production of two of the negroes, for one of the negroes had run
away and been lodged in jail in Maryland. Davis produced the two negroes on the last
day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No.
14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed.,
p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by
the respondents constituted a legitimate bar to the granting of the writ of habeas
corpus.
There remains to be considered whether the respondent complied with the two orders
of the Supreme Court awarding the writ of habeas corpus, and if it be found that they
did not, whether the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco
Sales, and Feliciano Yigo to present the persons named in the writ before the court
on December 2, 1918. The order was dated November 4, 1918. The respondents were
thus given ample time, practically one month, to comply with the writ. As far as the
record discloses, the Mayor of the city of Manila waited until the 21st of November
before sending a telegram to the provincial governor of Davao. According to the
response of the attorney for the Bureau of Labor to the telegram of his chief, there
were then in Davao women who desired to return to Manila, but who should not be
permitted to do so because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought before the court on
the day named.
For the respondents to have fulfilled the court's order, three optional courses were
open: (1) They could have produced the bodies of the persons according to the
command of the writ; or (2) they could have shown by affidavit that on account of
sickness or infirmity those persons could not safely be brought before the court; or (3)
they could have presented affidavits to show that the parties in question or their
attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They
did not produce the bodies of the persons in whose behalf the writ was granted; they
did not show impossibility of performance; and they did not present writings that
waived the right to be present by those interested. Instead a few stereotyped affidavits
purporting to show that the women were contended with their life in Davao, some of
which have since been repudiated by the signers, were appended to the return. That
through ordinary diligence a considerable number of the women, at least sixty, could
have been brought back to Manila is demonstrated to be found in the municipality of
Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been
warranted summarily in finding the respondents guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the non-production
of the persons were far from sufficient. The, authorities cited herein pertaining to
somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ
67
must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to
an earlier decision of the Court, said: "We thought that, having brought about that state
of things by his own illegal act, he must take the consequences; and we said that he
was bound to use every effort to get the child back; that he must do much more than
write letters for the purpose; that he must advertise in America, and even if necessary
himself go after the child, and do everything that mortal man could do in the matter;
and that the court would only accept clear proof of an absolute impossibility by way of
excuse." In other words, the return did not show that every possible effort to produce
the women was made by the respondents. That the court forebore at this time to take
drastic action was because it did not wish to see presented to the public gaze the
spectacle of a clash between executive officials and the judiciary, and because it
desired to give the respondents another chance to demonstrate their good faith and to
mitigate their wrong.
In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up
the women, and a steamer with free transportation to Manila was provided. While
charges and counter-charges in such a bitterly contested case are to be expected, and
while a critical reading of the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our sincere desire to see this
unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it
should receive an executive investigation. If any particular individual is still restrained
of her liberty, it can be made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance
with it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez, and Fernando Ordax, members of the police force of the city of Manila,
Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, an hacendero
of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and
not on the vindictive principle. Only occasionally should the court invoke its inherent
power in order to retain that respect without which the administration of justice must
falter or fail. Nevertheless when one is commanded to produce a certain person and
does not do so, and does not offer a valid excuse, a court must, to vindicate its
authority, adjudge the respondent to be guilty of contempt, and must order him either
imprisoned or fined. An officer's failure to produce the body of a person in obedience to
a writ of habeas corpus when he has power to do so, is a contempt committed in the
face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N.
C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible exception
of the first named, has flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of
their chiefs, and while, under the law of public officers, this does not exonerate them
entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yigo
appears to have been drawn into the case through a misconstruction by counsel of
telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done
no more than to fulfill his duty as the legal representative of the city government.
Finding him innocent of any disrespect to the court, his counter-motion to strike from
the record the memorandum of attorney for the petitioners, which brings him into this
undesirable position, must be granted. When all is said and done, as far as this record
discloses, the official who was primarily responsible for the unlawful deportation, who
ordered the police to accomplish the same, who made arrangements for the steamers
and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the
return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of
Manila. His intention to suppress the social evil was commendable. His methods were
unlawful. His regard for the writ of habeas corpus issued by the court was only tardily
and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying the writ, and in pursuance
thereof to require respondent Lukban to forfeit to the parties aggrieved as much as
P400 each, which would reach to many thousands of pesos, and in addition to deal
with him as for a contempt. Some members of the court are inclined to this stern view.
It would also be possible to find that since respondent Lukban did comply substantially
with the second order of the court, he has purged his contempt of the first order. Some
members of the court are inclined to this merciful view. Between the two extremes
appears to lie the correct finding. The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass the administration of justice to
such an extent that his later activity may be considered only as extenuating his
conduct. A nominal fine will at once command such respect without being unduly
oppressive such an amount is P100.
In resume as before stated, no further action on the writ of habeas corpus is
necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz
are found not to be in contempt of court. Respondent Lukban is found in contempt of
court and shall pay into the office of the clerk of the Supreme Court within five days the
sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to
strike from the record the Replica al Memorandum de los Recurridos of January 25,
1919, is granted. Costs shall be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express
the hope that this decision may serve to bulwark the fortifications of an orderly
government of laws and to protect individual liberty from illegal encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
68
G.R. No. 83988 September 29, 1989
RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR
PEOPLE'S RIGHTS (ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.
SARMIENTO, J., dissenting:
1. CONSTITUTIONAL LAW; CONSTITUTION; BEDROCK OF THE REGIME OF LAW
AND CONSTITUTIONALISM. The Charter says that the people enjoy the right of
security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock
the right of the people to be left alone on which the regime of law and
constitutionalism rest. It is not, as the majority would put it, a matter of "occasional
inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is
so I submit to trivialize the plain command of the Constitution.
2. ID.; SEARCH AND SEIZURE; BURDEN OF PROVING REASONABLENESS
INCUMBENT UPON THE STATE. While the right against unreasonable searches
and seizures, as my brethren advance, is a right personal to the aggrieved party, the
petitioners, precisely, have come to Court because they had been, or had felt,
aggrieved. I submit that in that event, the burden is the States, to demonstrate the
reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need
not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all
their gore and gruesomeness.
3. ID.; ID.; ABSENCE ALONE OF A SEARCH WARRANT MAKES CHECKPOINT
SEARCHES UNREASONABLE. The absence alone of a search warrant, as I have
averred, makes checkpoint searches unreasonable, and by itself, subject to
constitutional challenges. (Supra.) As it is, "checkpoints", have become "search
warrants" unto themselves a roving one at that.
4. ID.; ID.; CASE AT BAR NOT SIMPLY A POLICEMAN ON THE BEAT. The
American cases the majority refers to involve routine checks compelled by "probable
cause." What we have here, however, is not simply a policeman on the beat but armed
men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who
fire with no provocation and without batting an eyelash. They likewise shoot you simply
because they do not like your face.
PADILLA, J.:
This is a petition for prohibition with preliminary injunction and/or temporary restraining
order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or
elsewhere, as unconstitutional and the dismantling and banning of the same or, in the
alternative, to direct the respondents to formulate guidelines in the implementation of
checkpoints, for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic,
taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of
Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for
People's Rights (ULAP) sues in its capacity as an association whose members are all
members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC) was
activated pursuant to Letter of Instruction 02/87 of the Philippine General
Headquarters, AFP, with the mission of conducting security operations within its area
of responsibility and peripheral areas, for the purpose of establishing an effective
territorial defense, maintaining peace and order, and providing an atmosphere
conducive to the social, economic and political development of the National Capital
Region. 1 As part of its duty to maintain peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the residents of
Valenzuela are worried of being harassed and of their safety being placed at the
arbitrary, capricious and whimsical disposition of the military manning the checkpoints,
considering that their cars and vehicles are being subjected to regular searches and
check-ups, especially at night or at dawn, without the benefit of a search warrant and/
or court order. Their alleged fear for their safety increased when, at dawn of 9 July
1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan,
was gunned down allegedly in cold blood by the members of the NCRDC manning the
checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or
refusing to submit himself to the checkpoint and for continuing to speed off inspire of
warning shots fired in the air. Petitioner Valmonte also claims that, on several
occasions, he had gone thru these checkpoints where he was stopped and his car
subjected to search/check-up without a court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a blanket
authority to make searches and/or seizures without search warrant or court order in
violation of the Constitution; 2 and, instances have occurred where a citizen, while not
killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the military
manning the checkpoints are not sufficient grounds to declare the checkpoints as per
se illegal. No proof has been presented before the Court to show that, in the course of
their routine checks, the military indeed committed specific violations of petitioners'
right against unlawful search and seizure or other rights.
In a case filed by the same petitioner organization, Union of Lawyers and Advocates
for People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual
petitioners who do not allege that any of their rights were violated are not qualified to
bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a personal right
invocable only by those whose rights have been infringed, 4 or threatened to be
infringed. What constitutes a reasonable or unreasonable search and seizure in any
particular case is purely a judicial question, determinable from a consideration of the
circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been stopped and
searched without a search warrant by the military manning the checkpoints, without
more, i.e., without stating the details of the incidents which amount to a violation of his
right against unlawful search and seizure, is not sufficient to enable the Court to
determine whether there was a violation of Valmonte's right against unlawful search
and seizure. Not all searches and seizures are prohibited. Those which are reasonable
69
are not forbidden. A reasonable search is not to be determined by any fixed formula
but is to be resolved according to the facts of each case. 6
Where, for example, the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes
a light therein, 9 these do not constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other
areas) may be considered as a security measure to enable the NCRDC to pursue its
mission of establishing effective territorial defense and maintaining peace and order for
the benefit of the public. Checkpoints may also be regarded as measures to thwart
plots to destabilize the government, in the interest of public security. In this connection,
the Court may take judicial notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased killings in cities of police
and military men by NPA "sparrow units," not to mention the abundance of unlicensed
firearms and the alarming rise in lawlessness and violence in such urban centers, not
all of which are reported in media, most likely brought about by deteriorating economic
conditions which all sum up to what one can rightly consider, at the very least, as
abnormal times. Between the inherent right of the state to protect its existence and
promote public welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in
uniform, in the same manner that all governmental power is susceptible of abuse. But,
at the cost of occasional inconvenience, discomfort and even irritation to the citizen,
the checkpoints during these abnormal times, when conducted within reasonable
limits, are part of the price we pay for an orderly society and a peaceful community.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were
temporarily lifted and a review and refinement of the rules in the conduct of the police
and military manning the checkpoints was ordered by the National Capital Regional
Command Chief and the Metropolitan Police Director. 10
WHEREFORE, the petition is DISMISSED. SO ORDERED.
Separate Opinions
CRUZ, J., dissenting:
I dissent. The sweeping statements in the majority opinion are as dangerous as the
checkpoints it would sustain and fraught with serious threats to individual liberty. The
bland declaration that individual rights must yield to the demands of national security
ignores the fact that the Bill of Rights was intended precisely to limit the authority of the
State even if asserted on the ground of national security. What is worse is that the
searches and seizures are peremptorily pronounced to be reasonable even without
proof of probable cause and much less the required warrant. The improbable excuse is
that they are aimed at "establishing an effective territorial defense, maintaining peace
and order, and providing an atmosphere conducive to the social, economic and
political development of the National Capital Region." For these purposes, every
individual may be stopped and searched at random and at any time simply because he
excites the suspicion, caprice, hostility or malice of the officers manning the
checkpoints, on pain of arrest or worse, even being shot to death, if he resists.
I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark
street as a routine measure of security and curiosity. But the case at bar is different.
Military officers are systematically stationed at strategic checkpoints to actively ferret
out suspected criminals by detaining and searching any individual who in their opinion
might impair "the social, economic and political development of the National Capital
Region." It is incredible that we can sustain such a measure. And we are not even
under martial law.
Unless we are vigilant of our rights, we may find ourselves back to the dark era of the
truncheon and the barbed wire, with the Court itself a captive of its own complaisance
and sitting at the death-bed of liberty.
SARMIENTO, J., dissenting:
I join Justice Isagani Cruz in his dissent, delivered so straight-forwardly and eloquently.
I am agreed that the existence alone of checkpoints makes search done therein,
unreasonable and hence, repugnant to the Constitution.
The Charter says that the people enjoy the right of security of person, home, and
effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be
left alone on which the regime of law and constitutionalism rest. It is not, as the
majority would put it, a matter of "occasional inconveniences, discomfort and even
irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain
command of the Constitution.
Checkpoints, I further submit, are things of martial rule, and things of the past. They
first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE
CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF
WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER
PURPOSES), a martial law issuance, as amended by General Order No. 67
(AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66
DATED SEPTEMBER 12,1980), yet another martial law issuance. (See O.G.
4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive
measures, the same measures against which we had fought so painstakingly in our
quest for liberty, a quest that ended at EDSA and a quest that terminated a
dictatorship. How soon we forget.
While the right against unreasonable searches and seizures, as my brethren advance,
is a right personal to the aggrieved party, the petitioners, precisely, have come to Court
because they had been, or had felt, aggrieved. I submit that in that event, the burden is
the States, to demonstrate the reasonableness of the search. The petitioners, Ricardo
Valmonte in particular, need not, therefore, have illustrated the "details of the
incident" (Resolution, supra, 4) in all their gore and gruesomeness.
In any event, the absence alone of a search warrant, as I have averred, makes
checkpoint searches unreasonable, and by itself, subject to constitutional challenges.
(Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a
roving one at that.
That" [n]ot all searches and seizures are prohibited," the majority points out, is fine.
And so is "a reasonable search is not to be determined by any fixed formula but is to
be resolved according to the facts of each case." (Supra) But the question, exactly, is:
70
Is (are) the search(es) in this case reasonable? I submit that it(they) is(are) not, for one
simple reason: No search warrant has been issued by a judge.
I likewise do not find this case to be a simple matter of an "officer merely draw(ing)
aside the curtain of a vacant vehicle . . . or simply look(ing) (supra) there, "or flash(ing)
a light therein." (Supra) What we have here is Orwells Big Brother watching every step
we take and every move we make.
As it also is, "checkpoints" are apparently, State policy. The American cases the
majority refers to involve routine checks compelled by "probable cause." What we
have here, however, is not simply a policeman on the beat but armed men, CAFGU or
Alsa Masa, who hold the power of life or death over the citizenry, who fire with no
provocation and without batting an eyelash. They likewise shoot you simply because
they do not like your face. I have witnessed actual incidents.
Washington said that militia can not be made to dictate the terms for the nation. He
can not be anymore correct here.
"Between the inherent right of the state to protect its existence . . . and on individuals
right against a warrantless search, which is reasonably conducted, "so my brethren go
on, the former shall prevail. (Supra) First, this is the same lie that the hated despot
foisted on the Filipino people. It is a serious mistake to fall for it a second time around.
Second, the checkpoint searches herein are unreasonable: There was no warrant.
A final word. After twenty years of tyranny, the dawn is upon us. The country is once
again the "showcase of democracy" in Asia. But if in many cases, it has been "paper
democracy", let this Court anyway bring to pass its stand, and make liberty in the land,
a living reality.
I vote then, to grant the petition.
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR.,
IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of
Justice, Immigration Commissioner, Secretary of National Defense and Chief of
Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly only
legal issues are involved, the Court's decision in this case would undeniably have a
profound effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile. In his
stead, Corazon C. Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of power have not been
unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr.
Marcos, the takeover of television station Channel 7 by rebel troops led by Col. Canlas
with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses
to surreptitiously return from Hawii with mercenaries aboard an aircraft chartered by a
Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the
capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind
loyalty of their followers in the country. The ratification of the 1987 Constitution
enshrined the victory of "people power" and also clearly reinforced the constitutional
moorings of Mrs. Aquino's presidency. This did not, however, stop bloody challenges to
the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players
in the February Revolution, led a failed coup that left scores of people, both
combatants and civilians, dead. There were several other armed sorties of lesser
significance, but the message they conveyed was the same a split in the ranks of
the military establishment that thraetened civilian supremacy over military and brought
to the fore the realization that civilian government could be at the mercy of a fractious
military.
But the armed threats to the Government were not only found in misguided elements
and among rabid followers of Mr. Marcos. There are also the communist insurgency
and the seccessionist movement in Mindanao which gained ground during the rule of
Mr. Marcos, to the extent that the communists have set up a parallel government of
their own on the areas they effectively control while the separatist are virtually free to
move about in armed bands. There has been no let up on this groups' determination to
wrest power from the govermnent. Not only through resort to arms but also to through
the use of propaganda have they been successful in dreating chaos and destabilizing
the country.
71
Nor are the woes of the Republic purely political. The accumulated foreign debt and
the plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed
office, have yet to show concrete results in alleviating the poverty of the masses, while
the recovery of the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to
die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a
time when the stability of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood firmly on the decision
to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced
out of office and into exile after causing twenty years of political, economic and social
havoc in the country and who within the short space of three years seeks to return, is
in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to
issue travel documents to Mr. Marcos and the immediate members of his family and to
enjoin the implementation of the President's decision to bar their return to the
Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to
the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution
of the following issues:
1. Does the President have the power to bar the return of former President
Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos
and his family from returning to the Philippines, in the interest of "national security,
public safety or public health
a. Has the President made a finding that the return of former President Marcos
and his family to the Philippines is a clear and present danger to national security,
public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making such
finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the President's
decision, including the grounds upon which it was based, been made known to
petitioners so that they may controvert the same?
c. Is the President's determination that the return of former President Marcos
and his family to the Philippines is a clear and present danger to national security,
public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former
President Marcos and his family is a clear and present danger to national security,
public safety, or public health, have respondents established such fact?
3. Have the respondents, therefore, in implementing the President's decision to
bar the return of former President Marcos and his family, acted and would be acting
without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in
performing any act which would effectively bar the return of former President Marcos
and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp.
234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to
return to the Philippines is guaranteed under the following provisions of the Bill of
Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.
xxx xxx xxx
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.
The petitioners contend that the President is without power to impair the liberty of
abode of the Marcoses because only a court may do so "within the limits prescribed by
law." Nor may the President impair their right to travel because no law has authorized
her to do so. They advance the view that before the right to travel may be impaired by
any authority or agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and
his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 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, the International Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.
72
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security, public
order (order public), public health or morals or the rights and freedoms of others, and
are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case
involves a political question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of abode.
Petitioners invoke these constitutional rights in vacuo without reference to attendant
circumstances.
Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the Philippines
and reside here at this time in the face of the determination by the President that such
return and residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political
question as it involves merely a determination of what the law provides on the matter
and application thereof to petitioners Ferdinand E. Marcos and family. But when the
question is whether the two rights claimed by petitioners Ferdinand E. Marcos and
family impinge on or collide with the more primordial and transcendental right of the
State to security and safety of its nationals, the question becomes political and this
Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable question
which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the
Philippines and reestablish their residence here even if their return and residence here
will endanger national security and public safety? this is still a justiciable question
which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos
and family shall return to the Philippines and establish their residence here? This is
now a political question which this Honorable Court can not decide for it falls within the
exclusive authority and competence of the President of the Philippines. [Memorandum
for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over
individual rights. In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided by law, to
render personal, military, or civil service.
Section 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.
Respondents also point out that the decision to ban Mr. Marcos and family from
returning to the Philippines for reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza
Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of
Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of
Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S.
Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different light.
Although we give due weight to the parties' formulation of the issues, we are not bound
by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of
the right to travel and the import of the decisions of the U.S. Supreme Court in the
leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig
v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to
travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from
the Philippines to other countries or within the Philippines. These are what the right to
travel would normally connote. Essentially, the right involved is the right to return to
one's country, a totally distinct right under international law, independent from although
related to the right to travel. Thus, the Universal Declaration of Humans Rights and the
International Covenant on Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration speaks of
the "right to freedom of movement and residence within the borders of each state" [Art.
13(l)] separately from the "right to leave any country, including his own, and to return to
his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to
liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to
"be free to leave any country, including his own." [Art. 12(2)] which rights may be
restricted by such laws as "are necessary to protect national security, public order,
public health or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to
the right to return to one's country in the same context as those pertaining to the liberty
of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in
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 and, under our Constitution, is part of the law of
the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from
the right to travel and enjoys a different protection under the International Covenant of
Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports
for the purpose of effectively exercising the right to travel are not determinative of this
73
case and are only tangentially material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The issue before the Court is
novel and without precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there
can be limitations on the right to travel in the absence of legislation to that effect is
rendered unnecessary. An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article
VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcose's to the Philippines poses a serious threat to national interest
and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes
and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly
provides that "[the legislative power shall be vested in the Congress of the Philippines"
Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the
Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.] These
provisions not only establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative, executive and judicial
powers subject only to limitations provided in the Constitution. For as the Supreme
Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the
legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the
government." [At 631-632.1 If this can be said of the legislative power which is
exercised by two chambers with a combined membership of more than two hundred
members and of the judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested
in the President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what
is meant by executive power" although in the same article it touches on the exercise of
certain powers by the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the appointing
power, the powers under the commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign loans, the power to enter into
treaties or international agreements, the power to submit the budget to Congress, and
the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President
did the framers of the Constitution intend that the President shall exercise those
specific powers and no other? Are these se enumerated powers the breadth and
scope of "executive power"? Petitioners advance the view that the President's powers
are limited to those specifically enumerated in the 1987 Constitution. Thus, they
assert: "The President has enumerated powers, and what is not enumerated is
impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for
Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of the U.S.
Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with
the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that
a constitution ought to settle everything beforehand it should be a nightmare; by the
same token, to those who think that constitution makers ought to leave considerable
leeway for the future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive
power shall be vested in a President of the United States of America." . . .. [The
President: Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the swing from
the presidency by commission to Lincoln's dictatorship, he concluded that "what the
presidency is at any particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of
course, an agency of government subject to unvarying demands and duties no
remained, of cas President. But, more than most agencies of government, it changed
shape, intensity and ethos according to the man in charge. Each President's distinctive
temperament and character, his values, standards, style, his habits, expectations,
Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded the entire
government. The executive branch, said Clark Clifford, was a chameleon, taking its
color from the character and personality of the President. The thrust of the office, its
impact on the constitutional order, therefore altered from President to President. Above
all, the way each President understood it as his personal obligation to inform and
involve the Congress, to earn and hold the confidence of the electorate and to render
an accounting to the nation and posterity determined whether he strengthened or
weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but,
rather, that the consideration of tradition and the development of presidential power
under the different constitutions are essential for a complete understanding of the
extent of and limitations to the President's powers under the 1987 Constitution. The
1935 Constitution created a strong President with explicitly broader powers than the
U.S. President. The 1973 Constitution attempted to modify the system of government
into the parliamentary type, with the President as a mere figurehead, but through
numerous amendments, the President became even more powerful, to the point that
he was also the de facto Legislature. The 1987 Constitution, however, brought back
the presidential system of government and restored the separation of legislative,
74
executive and judicial powers by their actual distribution among three distinct branches
of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office unless the Constitution
itself withholds it. Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the President other
powers that do not involve the execution of any provision of law, e.g., his power over
the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what
is traditionally considered as within the scope of "executive power." Corollarily, the
powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the sum
of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer
v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who
between the Governor-General of the Philippines and the Legislature may vote the
shares of stock held by the Government to elect directors in the National Coal
Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the
power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative
functions or with the doing of anything which is in aid of performance of any such
functions by the legislature. Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act in the Governor-
General, it is clear that they are not legislative in character, and still more clear that
they are not judicial. The fact that they do not fall within the authority of either of these
two constitutes logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of
dissent we find reinforcement for the view that it would indeed be a folly to construe
the powers of a branch of government to embrace only what are specifically mentioned
in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of
theGovernment is to serve and protect the people" and that "[t]he 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." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order,
the protection of life, liberty and property, and the promotion of the general welfare are
essentially ideals to guide governmental action. But such does not mean that they are
empty words. Thus, in the exercise of presidential functions, in drawing a plan of
government, and in directing implementing action for these plans, or from another
point of view, in making any decision as President of the Republic, the President has to
consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than that, having sworn
to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from being an allocation
of power is also a social contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers of the Government
exercising the powers delegated by the people forget and the servants of the people
become rulers, the Constitution reminds everyone that "[s]overeignty resides in the
people and all government authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return
to the country are the deposed dictator and his family at whose door the travails of the
country are laid and from whom billions of dollars believed to be ill-gotten wealth are
sought to be recovered. The constitutional guarantees they invoke are neither absolute
nor inflexible. For the exercise of even the preferred freedoms of speech and
ofexpression, although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
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. It is founded on
the duty of the President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also his duty to do anything not
forbidden by the Constitution or the laws that the needs of the nation demand [See
Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and
defend the Constitution. It also may be viewed as a power implicit in the President's
duty to take care that the laws are faithfully executed [see Hyman, The American
President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector
of the peace. Rossiter The American Presidency].The power of the President to keep
the peace is not limited merely to exercising the commander-in-chief powers in times
of emergency or to leading the State against external and internal threats to its
75
existence. The President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquility in times when no foreign foe
appears on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the relative want
of an emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in- Chief powers short of the calling
of the armed forces, or suspending the privilege of the writ of habeas corpus or
declaring martial law, in order to keep the peace, and maintain public order and
security.
That the President has the power under the Constitution to bar the Marcose's from
returning has been recognized by memembers of the Legislature, and is manifested by
the Resolution proposed in the House of Representatives and signed by 103 of its
members urging the President to allow Mr. Marcos to return to the Philippines "as a
genuine unselfish gesture for true national reconciliation and as irrevocable proof of
our collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The
Resolution does not question the President's power to bar the Marcoses from returning
to the Philippines, rather, it appeals to the President's sense of compassion to allow a
man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never contemplated situations even
remotely similar to the present one. It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise
of a broader discretion on the part of the President to determine whether it must be
granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government." [Art. VIII, Sec. 1]
Given this wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens
the scope of judicial inquiry into areas which the Court, under previous constitutions,
would have normally left to the political departments to decide. But nonetheless there
remain issues beyond the Court's jurisdiction the determination of which is exclusively
for the President, for Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may appear. We
cannot set aside a presidential pardon though it may appear to us that the beneficiary
is totally undeserving of the grant. Nor can we amend the Constitution under the guise
of resolving a dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the
political question doctrine. The deliberations of the Constitutional Commission cited by
petitioners show that the framers intended to widen the scope of judicial review but
they did not intend courts of justice to settle all actual controversies before them. When
political questions are involved, the Constitution limits the determination to whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. If grave abuse
is not established, the Court will not substitute its judgment for that of the official
concerned and decide a matter which by its nature or by law is for the latter alone to
decide. In this light, it would appear clear that the second paragraph of Article VIII,
Section 1 of the Constitution, defining "judicial power," which specifically empowers the
courts to determine whether or not there has been a grave abuse of discretion on the
part of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11,
1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system of government, the Executive
is supreme within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere alloted to
him by the Basic Law, and the authority to determine whether or not he has so acted is
vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is merely to check
not to supplant the Executive, or to ascertain merely whether he has gone beyond
the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist
factual bases for the President to conclude that it was in the national interest to bar the
return of the Marcoses to the Philippines. If such postulates do exist, it cannot be said
that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in
deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the
facts revealed during the briefing in chambers by the Chief of Staff of the Armed
Forces of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a well-organized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the
murder with impunity of military men, police officers and civilian officials, to mention
only a few. The documented history of the efforts of the Marcose's and their followers
to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion
that the return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.
76
As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return of the Marcoses that may
prove to be the proverbial final straw that would break the camel's back. With these
before her, the President cannot be said to have acted arbitrarily and capriciously and
whimsically in determining that the return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to
step in and exercise the commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through the Government, is not
precluded from taking pre- emptive action against threats to its existence if, though still
nascent they are perceived as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The preservation of the State the
fruition of the people's sovereignty is an obligation in the highest order. The President,
sworn to preserve and defend the Constitution and to see the faithful execution the
laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover
from the hardships brought about by the plunder of the economy attributed to the
Marcoses and their close associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the enormous wealth
stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the excessive foreign
borrowing during the Marcos regime, which stifles and stagnates development and is
one of the root causes of widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is easily within the
ambit of judicial notice.
The President has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years and lead to
total economic collapse. Given what is within our individual and common knowledge of
the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances
poses a serious threat to national interest and welfare and in prohibiting their return to
the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.
G.R. No. L-342 May 4, 1946
AURELIO S. ALVERO, petitioner,
vs.
ARSENIO P. DIZON, ET AL., respondent.
Albert and Albert for petitioner.
First Assistant Solicitor General Reyes and Assistant Solicitor General Alvendia for
respondents.
DE JOYA, J.:
This is a petition for certiorari with injunction originally filed in this court.
In the petition it is alleged that petitioner Aurelio S. Alvero has been accused of
treason, in criminal case No. 3 of the People's Court; that at the hearing on his petition
for bail, the prosecution presented, as part of its evidence, certain documents which
had been allegedly seized by soldiers of the United States Army, accompanied by
Filipino guerrillas, in the petitioner's house; that petitioner immediately objected to the
presentation of said documents, and called the attention of the respondent judges to
the fact that he had filed a petition, in which he protested against the procedure of the
government in the seizure of said documents, and asked for their return to the
petitioner; that the respondents permitted the prosecution to present said documents
as evidence, which were considered, upon the termination of the presentation of the
evidence for both parties, in denying said petition for bail; that the petition filed on
December 1, 1945, for the return of the documents allegedly seized illegally in
petitioner's house, was not considered by the respondents, before the commencement
of the trial of petitioner's case, on the merits, due perhaps to an involuntary oversight;
that at the commencement of the trial of said criminal case No. 3, and during its
course, the prosecution again presented, as evidence, against the petitioner said
documents which had been taken from his house, and petitioner renewed his objection
thereto, and asked for their return to him, alleging that their seizure was illegal and that
their presentation would be tantamount to compelling him to testify against himself, in
violation of his constitutional rights; that in deciding the question so raised, the
respondent judges, in open court, stated that the prosecution might in the meanwhile
continue presenting said documents, without prejudice to the final resolution of said
petition, when the prosecution should finish presenting its evidence; that in concluding
the presentation of its evidence and resting the case, after offering said documents as
part of its evidence, the petitioner again raised the question of the admissibility of said
documents, and the respondent judges then ordered the substantiation of said
allegations of petitioner, and set for hearing his petition for the return of said
documents; that said petition was heard on February 16, 1946, and at said hearing,
the petitioner and his wife testified, without any contradiction that, on February 12,
1945, on the occasion of the arrest of the petitioner by soldiers of the United States
Army, the latter searched the house of the petitioner and seized, among other things,
the documents which he had in his house; that when said petition for the return of said
documents was submitted for the consideration and decision of the respondent judges,
the latter, on February 26, 1946, issued an order denying said petition, and admitted
as competent evidence the documents presented by the prosecution, marked as
Exhibits A, C, G, H, K, L, P, R, R-1, R-2, U, Z, CC, DD, FF, HH; that on the same date
77
that said order was issued, denying the petition for the return of said documents,
petitioner asked for the reconsideration of said order, which was also denied. (Petition,
pars. 1-12.)
And herein petitioner now claims that the respondent judges, in denying the petition for
the return of said documents, acted without jurisdiction and committed a grave abuse
in the exercise of their discretion, alleging that even the seizure of documents by
means of a search warrant legally issued, constitutes a violation of the rights
guaranteed in paragraphs 3 and 18 of section 1 of Article III of the Constitution, and,
consequently, when their seizure cannot be justified by the corresponding search
warrant, the court should order their immediate return; that the petitioner has no other
speedy and adequate remedy for the protection of his rights guaranteed by the
Constitution, other than this petition for certiorari, as the right of appeal granted by law
to a person accused of a crime, is costly and highly prejudicial to the petitioner, as it
presupposes that the prosecution has established the guilt of the accused by means of
legal and competent evidence, as alleged in the last three (3) paragraphs of the
petition.
Consequently, herein petitioner asks for the annulment of the order issued by the
respondent judges, on February 26, 1946, in said criminal case No. 3, entitled
People of the Philippines vs. Aurelio S. Alvero, the return to him of the documents
presented by the prosecution, mentioned above, and the issuance of a writ of
preliminary injunction. .In their answer filed on March 21, 1946, herein respondents
have substantially admitted the allegations made and contained in the first twelve (12)
paragraphs of the petition, except the portions alleging that the documents in question
had been obtained by means of force and intimidation or through coercion; and that
certain soldiers of the American Army took certain personal properties of herein
petitioner, at the time the search was made; and that the acquisition of said documents
was manifestly a violation of petitioner's constitutional rights and that their admission,
as evidence for the prosecution, would be tantamount to compelling petitioner, as
accused, to testify against himself all of which portions have been expressly denied
by the respondents.
Respondents have also expressly denied the allegations contained in the remaining
three (3) paragraphs of the petition.
And as defenses, respondents allege (1) that petitioner himself has admitted the
legality of the seizure of the documents in question in his motion for reconsideration,
dated February 26, 1946; (2) that petitioner has not proven that said documents had
been illegally seized for him; (3) that the seizure of the documents in question took
place, on February 12, 1945, in Pasay, Rizal, which was then still a combat zone, and
that the seizure of certain papers in the house of the petitioner was made by soldiers
of the United States Army of Liberation or its instrumentalities; (4) that said seizure
was effected lawfully under the terms of the proclamation of the Commander in Chief
of the United States Liberation Forces, dated December 29, 1944, in which he
declared his purpose to remove alleged collaborators, when apprehended, from any
position of political and economic influence in the Philippines and to hold them in
restraint for the duration of the war; (5) that the documents in question had been
properly admitted as evidence for the prosecution in criminal case No. 3, as herein
petitioner, as accused in said case, had expressly waived his right to object to their
admissibility, particularly Exhibits A, FF, HH and P; (6) that petitioner's evidence of
alleged ownership, relative to Exhibits C, G, H, K, I, P, R, R-1 and R-2, is altogether
insufficient, and petitioner himself has expressly admitted that said documents are not
his personal papers but part of the files of the New Leaders' Association, which was
proven to be an organization created, for the purpose of collaborating with the enemy;
(7) and that none of the exhibits referred to in the petition has been satisfactorily
identified by the petitioner as included among the papers allegedly wrongfully seized
from his house and belonging to him.
Considering the allegations made by the parties in their respective pleadings, and their
supporting papers, as well as the admissions made therein, the following facts appear
to have been sufficiently established:
(1) That on February 12, 1945, while the battle for Manila was raging, soldiers of the
United States Army, accompanied by men of Filipino Guerrilla Forces, placed herein
petitioner under arrest, having been suspected of collaboration with the enemy, and
seized and took certain papers from his house in Pasay, Rizal;
(2) That on or about October 4, 1945, petitioner was accused of treason, in criminal
case No. 3 of the People's Court; after which, on December 1, 1945, he filed a petition,
demanding the return of the papers allegedly seized and taken from his house;
(3) That petitioner also filed a petition for bail, at the hearing of which the prosecution
presented certain papers and documents, which were admitted as part of its evidence,
and said petition was denied;
(4) That at the trial of the case on the merits, the prosecution again presented said
papers and documents, which were admitted as part of its evidence, and were marked
as exhibits, as described in the petition for certiorari, filed in this court;
(5) That herein petitioner had failed to object properly to the admission of said papers
and documents at the hearing on said petition for bail, and at the trial of the case on
the merits, in not having insisted that the question of the legality of the search and
seizure of the papers and documents taken from his house should have been litigated
and finally decided first, and thus practically waived his objection to their admissibility,
as evidence for the prosecution;
(6) That at the hearing on his petition for the return of the papers taken from his house,
held after they had been admitted as part of the evidence for the prosecution, at the
hearing on the petition for bail and at the trial of the case on the merits, herein
petitioner had failed to identify satisfactorily the documents now in question, and his
ownership thereof; and
(7) That petitioner himself in his petition for reconsideration, dated February 26, 1946,
admitted the legality the legality of the seizure of the documents taken from his house,
and at the hearing on his petition for bail, he himself called for some of the documents
in question.
The right of officers and men of the United States Army to arrest herein petitioner, as a
collaborationist suspect, and to seize his personal papers, without any search warrant,
in the zone of military operations, is unquestionable, under the provisions of article 4,
Chapter II, Section I, of the Regulations relative to the Laws and Customs of War on
Land of the Hague Conventions of 1907, authorizing the seizure of military papers in
the possession of prisoners of war (Wilson, International Law, 3d ed., 1939, p.524);
and also under the proclamation, dated December 29, 1944, issued by Gen. Douglas
MacArthur, as Commander in Chief of the United States of Army, declaring his purpose
to remove certain citizens of the Philippines, who had voluntarily given aid and comfort
78
to the enemy, in violation of the allegiance due the Governments of the United States papers but part of the files of the New Leader's Association. And it is well established
and the Commonwealth of the Philippines, when apprehended, from any position of rule in this jurisdiction that in a petition for the production of papers and documents,
political and economic influence in the Philippines and to hold them in restraint for the they must be sufficiently described and identified, otherwise the petition cannot
duration of the war. (41 Off. Gaz., No. 2, pp. 148, 149.) As a matter of fact, petitioner prosper. (Liebenow vs. Philippine Vegetable Oil Co., 39 Phil., 60, 67, 69; Rule 21,
himself, in his motion for reconsideration, dated February 26, 1946, expressly admitted section 1, Rules of Court.)
the legality of the seizure of his personal papers and documents at the time of his The purpose of the constitutional provisions against unlawful searches and seizures is
arrest. to prevent violations of private security in person and property, and unlawful invasions
The most important exception to the necessity for a search warrant is the right of of the sanctity of the home, by officers of the law acting under legislative or judicial
search and seizure as an incident to a lawful arrest. A lawful arrest may be made either sanction, and to give remedy against such usurpations when attempted. (Adams vs.
while a crime is being committed or after its commission. The right to search includes New York, 192 U. S., 585.) But it does not prohibit the Federal Government from taking
in both instances that of searching the person of him who is arrested, in order to find advantage of unlawful searches made by a private person or under authority of state
and seize things connected with the crime as its fruits or as the means by which it was law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs. McDowell, 256 U. S., 465.)
committed. (Agnello vs. United States, 269 U. S., 20.) As the soldiers of the United States Army, that took and seized certain papers and
When one is legally arrested for an offense, whatever is found in his possession or in documents from the residence of herein petitioner, on February 12, 1945, were not
his control may be seized and used in evidence against him; and an officer has the acting as agents or on behalf of the Government of the Commonwealth of the
right to make an arrest without a warrant of a person believed by the officer upon Philippines; and that those papers and documents came in the possession of the
reasonable grounds to have committed a felony. (Carroll vs. United States, 267 U. S., authorities of the Commonwealth Government, through the Office of the CIC of the
132.). United States Army in Manila, the use and presentation of said papers and documents,
The majority of the states have held that the privilege against compulsory self- as evidence for the prosecution against herein petitioner, at the trial of his case for
incrimination, which is also guaranteed by state constitutional provisions is not violated treason, before the People's Court, cannot now be legally attacked, on the ground of
by the use in evidence of articles obtained by an unconstitutional search and seizure. unlawful or unreasonable searches and seizures, or on any other constitutional
(People vs. Defore, 242 N. Y., 13; 150 N. E., 585.) ground, as declared by the Supreme Court of the United States in similar cases.
(Burdeau vs. McDowell, 256 U. S., 465; Gambino vs. United States, 275 U. S., 310.)
It is true that on December 1, 1945, herein petitioner filed a petition, demanding the
return of certain papers and documents allegedly seized and taken from his house at In view of the foregoing, it is evident that the petition for certiorari with injunction, filed
the time of his arrest; but when he consented to their presentation, as part of the in this case, is absolutely without merit, and it is, therefore, hereby denied and
evidence for the prosecution, at the hearing on his petition for bail and at the trial of the dismissed with costs. So ordered.
case on the merits, without having insisted that the question of the alleged illegality of Jaranilla, Feria, Pablo, and Hilado, JJ., and Buenaventura, Santos, Santiago and T.
the search and seizure of said papers and documents should first have been directly Santos, JJ., concur.
litigated and established by a motion, made before the trial, for their return, he was and
should be deemed to have waived his objection to their admissibility as part of the
evidence for the prosecution; since the privilege against compulsory self-incrimination
may be waived. (Weeks vs. United States, 232 U. S., 383; Silverthorne Lumber Co. vs.
United States, 251 U. S., 385; Gouled vs. United States, 255 U. S., 298; People vs.
Carlos, 47 Phil., 626, 630, 631.)
At the hearing on his petition for bail, petitioner himself requested the production of the
document marked as Exhibit A, which was a letter sent by him to Dr. Jose P. Laurel;
the document marked as Exhibit HH, which was a memorandum to Col. Suzuki, dated
December 30, 1944; and the document marked as Exhibit P, which was a
memorandum on Nippongo classes. And he is now, therefore, estopped from
questioning their admission.
Furthermore, petitioner could not properly identify many of said documents, such as
Exhibit FF, nor satisfactorily establish his ownership thereof; while the prosecution has
sufficiently established the fact that some of the papers now in question, such as
Exhibit C, had been received at the Office of the CIC of the United States Army in the
City of Manila, since February 11, 1945, that is, one day prior to the seizure of certain
papers and documents in the house of the petitioner. And with reference to Exhibits C,
G, H, K, L, P, R, R-1 and R-2, petitioner himself admitted that they are not his personal
79
G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.
BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of Manila
(Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of
Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article
1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-
law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export
Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four
(4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley
Reyes) attended to them. The appellant informed Anita Reyes that he was sending the
packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary
for the transaction, writing therein his name, passport number, the date of shipment
and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II,
8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books,
cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes no longer insisted on inspecting the packages. The four
(4) packages were then placed inside a brown corrugated box one by two feet in size
(1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the
box was sealed with masking tape, thus making the box ready for shipment (Decision,
p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts,
Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating
procedure, opened the boxes for final inspection. When he opened appellant's box, a
peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the
bundles allegedly containing gloves and felt dried leaves inside. Opening one of the
bundles, he pulled out a cellophane wrapper protruding from the opening of one of the
gloves. He made an opening on one of the cellophane wrappers and took several
grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting
a laboratory examination of the samples he extracted from the cellophane wrapper
(tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of
the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of
that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section.
Job Reyes informed the NBI that the rest of the shipment was still in his office.
Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the
Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took
out the cellophane wrappers from inside the gloves. Dried marijuana leaves were
found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6,
1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out
that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39,
October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp.
2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated
address in his passport being the Manila Central Post Office, the agents requested
assistance from the latter's Chief Security. On August 27, 1987, appellant, while
claiming his mail at the Central Post Office, was invited by the NBI to shed light on the
attempted shipment of the seized dried leaves. On the same day the Narcotics Section
of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory
examination. It turned out that the dried leaves were marijuana flowering tops as
certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425,
otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION
OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS
POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had
been obtained in violation of his constitutional rights against unreasonable search and
seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2),
Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
80
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search
and seizure had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United
States Constitution. As such, the Court may turn to the pronouncements of the United
States Federal Supreme Court and State Appellate Courts which are considered
doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in
Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure warrant, abandoning in the
process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948])
wherein the admissibility of evidence was not affected by the illegality of its seizure.
The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is
carried over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck
down the admissibility of evidence obtained in violation of the constitutional safeguard
against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37
SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144
SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon.
Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so
obtained were invariably procured by the State acting through the medium of its law
enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence
sought to be excluded was primarily discovered and obtained by a private person,
acting in a private capacity and without the intervention and participation of State
authorities. Under the circumstances, can accused/appellant validly claim that his
constitutional right against unreasonable searches and seizure has been violated?
Stated otherwise, may an act of a private individual, allegedly in violation of appellant's
constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties
guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to
the immunity of one's person, whether citizen or alien, from interference by
government, included in which is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except
under the circumstances above noted, for in the traditional formulation, his house,
however humble, is his castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of his dwelling and to
respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966]
and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court
there in construing the right against unreasonable searches and seizures declared
that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and
as shown in previous cases, its protection applies to governmental action. Its origin
and history clearly show that it was intended as a restraint upon the activities of
sovereign authority, and was not intended to be a limitation upon other than
governmental agencies; as against such authority it was the purpose of the Fourth
Amendment to secure the citizen in the right of unmolested occupation of his dwelling
and the possession of his property, subject to the right of seizure by process duly
served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof found
marijuana instead, without the knowledge and participation of police authorities, was
declared admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the
search and seizure clauses are restraints upon the government and its agents, not
upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr,
892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d
938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there
said:
The search of which appellant complains, however, was made by a private citizen
the owner of a motel in which appellant stayed overnight and in which he left behind a
travel case containing the evidence*** complained of. The search was made on the
motel owner's own initiative. Because of it, he became suspicious, called the local
police, informed them of the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment only
proscribes governmental action."
The contraband in the case at bar having come into possession of the Government
without the latter transgressing appellant's rights against unreasonable search and
81
seizure, the Court sees no cogent reason why the same should not be admitted
against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal
search and seizure of the evidence later on used in prosecuting the case which
resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In
both instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that
NBI agents conducted an illegal search and seizure of the prohibited merchandise.
Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the
forwarding agency, who made search/inspection of the packages. Said inspection was
reasonable and a standard operating procedure on the part of Mr. Reyes as a
precautionary measure before delivery of packages to the Bureau of Customs or the
Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp.
119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took
samples of the same to the NBI and later summoned the agents to his place of
business. Thereafter, he opened the parcel containing the rest of the shipment and
entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents
made no search and seizure, much less an illegal one, contrary to the postulate of
accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search
effected by Reyes into a warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which is in plain sight is not a search.
Having observed that which is open, where no trespass has been committed in aid
thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband
articles are identified without a trespass on the part of the arresting officer, there is not
the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State,
429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the
property was taken into custody of the police at the specific request of the manager
and where the search was initially made by the owner there is no unreasonable search
and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against
acts of private individuals finds support in the deliberations of the Constitutional
Commission. True, the liberties guaranteed by the fundamental law of the land must
always be subject to protection. But protection against whom? Commissioner Bernas
in his sponsorship speech in the Bill of Rights answers the query which he himself
posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The
Bill of Rights governs the relationship between the individual and the state. Its concern
is not the relation between individuals, between a private individual and other
individuals. What the Bill of Rights does is to declare some forbidden zones in the
private sphere inaccessible to any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July
17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore
applies as a restraint directed only against the government and its agencies tasked
with the enforcement of the law. Thus, it could only be invoked against the State to
whom the restraint against arbitrary and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be
first secured if it is to pass the test of constitutionality. However, if the search is made
at the behest or initiative of the proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without the intervention of police
authorities, the right against unreasonable search and seizure cannot be invoked for
only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful
intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been
modified by the present phraseology found in the 1987 Charter, expressly declaring as
inadmissible any evidence obtained in violation of the constitutional prohibition against
illegal search and seizure, it matters not whether the evidence was procured by police
authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not govern
relationships between individuals. Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the
issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of
the judge in the issuance thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988];
Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with
the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be
invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State would
result in serious legal complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through
private seizure equally applies, in pari passu, to the alleged violation, non-
governmental as it is, of appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court
erred in convicting him despite the undisputed fact that his rights under the constitution
while under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the
case and found nothing to indicate, as an "undisputed fact", that appellant was not
informed of his constitutional rights or that he gave statements without the assistance
of counsel. The law enforcers testified that accused/appellant was informed of his
constitutional rights. It is presumed that they have regularly performed their duties
82
(See. 5(m), Rule 131) and their testimonies should be given full faith and credence, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21;
there being no evidence to the contrary. What is clear from the records, on the other Rollo, p. 93).
hand, is that appellant refused to give any written statement while under investigation Evidence to be believed, must not only proceed from the mouth of a credible witness,
as testified by Atty. Lastimoso of the NBI, Thus: but it must be credible in itself such as the common experience and observation of
Fiscal Formoso: mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda,
did you investigate the accused together with the girl? 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92
SCRA 567 [1979]). As records further show, appellant did not even bother to ask
WITNESS: Michael's full name, his complete address or passport number. Furthermore, if indeed,
Yes, we have interviewed the accused together with the girl but the accused availed of the German national was the owner of the merchandise, appellant should have so
his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the
62; Original Records, p. 240) contrary, appellant signed the contract as the owner and shipper thereof giving more
weight to the presumption that things which a person possesses, or exercises acts of
The above testimony of the witness for the prosecution was not contradicted by the
ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is
defense on cross-examination. As borne out by the records, neither was there any
therefore estopped to claim otherwise.
proof by the defense that appellant gave uncounselled confession while being
investigated. What is more, we have examined the assailed judgment of the trial court Premises considered, we see no error committed by the trial court in rendering the
and nowhere is there any reference made to the testimony of appellant while under assailed judgment.
custodial investigation which was utilized in the finding of conviction. Appellant's WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable
second assignment of error is therefore misplaced. doubt of the crime charged is hereby AFFIRMED. No costs.
3. Coming now to appellant's third assignment of error, appellant would like us SO ORDERED.
to believe that he was not the owner of the packages which contained prohibited drugs
but rather a certain Michael, a German national, whom appellant met in a pub along Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.
Ermita, Manila: that in the course of their 30-minute conversation, Michael requested
him to ship the packages and gave him P2,000.00 for the cost of the shipment since
the German national was about to leave the country the next day (October 15, 1987,
TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as
incredulous, self-serving and contrary to human experience. It can easily be fabricated.
An acquaintance with a complete stranger struck in half an hour could not have
pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for
the purpose and for appellant to readily accede to comply with the undertaking without
first ascertaining its contents. As stated by the trial court, "(a) person would not simply
entrust contraband and of considerable value at that as the marijuana flowering tops,
and the cash amount of P2,000.00 to a complete stranger like the Accused. The
Accused, on the other hand, would not simply accept such undertaking to take custody
of the packages and ship the same from a complete stranger on his mere say-
so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand,
appellant failed to explain. Denials, if unsubstantiated by clear and convincing
evidence, are negative self-serving evidence which deserve no weight in law and
cannot be given greater evidentiary weight than the testimony of credible witnesses
who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People
vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of
the Interpol, he was previously convicted of possession of hashish by the Kleve Court
in the Federal Republic of Germany on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for
drug abuse and is just about an hour's drive from appellant's residence in Zurich,

83
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision
of the Regional Trial Court of Manila (Branch X) which ordered petitioner to return
documents and papers taken by her from private respondent's clinic without the latter's
knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March
26, 1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the
presence of her mother, a driver and private respondent's secretary, forcibly opened
the drawers and cabinet in her husband's clinic and took 157 documents consisting of
private correspondence between Dr. Martin and his alleged paramours, greetings
cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The
documents and papers were seized for use in evidence in a case for legal separation
and for disqualification from the practice of medicine which petitioner had filed against
her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for
damages against petitioner. The case was filed with the Regional Trial Court of Manila,
Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo
Martin, declaring him "the capital/exclusive owner of the properties described in
paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return
and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a
immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal
damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of
the suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal,
the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this
petition.
There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein
petitioner, without his knowledge and consent. For that reason, the trial court declared
the documents and papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the trial court's decision,
petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled
that the documents and papers (marked as Annexes A-1 to J-7 of respondent's
comment in that case) were admissible in evidence and, therefore, their use by
petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct,
For this reason it is contended that the Court of Appeals erred in affirming the decision
of the trial court instead of dismissing private respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for
disbarment. Among other things, private respondent, Dr. Alfredo Martin, as
complainant in that case, charged that in using the documents in evidence, Atty. Felix,
Jr. committed malpractice or gross misconduct because of the injunctive order of the
trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the
following defense of Atty. Felix; Jr. which it found to be "impressed with merit:"2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he
maintains that:
....
4. When respondent refiled Cecilia's case for legal separation before the Pasig
Regional Trial Court, there was admittedly an order of the Manila Regional Trial Court
prohibiting Cecilia from using the documents Annex "A-1 to J-7." On September 6,
1983, however having appealed the said order to this Court on a petition for certiorari,
this Court issued a restraining order on aforesaid date which order temporarily set
aside the order of the trial court. Hence, during the enforceability of this Court's order,
respondent's request for petitioner to admit the genuineness and authenticity of the
subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin
finally admitted the truth and authenticity of the questioned annexes, At that point in
time, would it have been malpractice for respondent to use petitioner's admission as
evidence against him in the legal separation case pending in the Regional Trial Court
of Makati? Respondent submits it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin
himself under oath, Such verified admission constitutes an affidavit, and, therefore,
receivable in evidence against him. Petitioner became bound by his admission. For
Cecilia to avail herself of her husband's admission and use the same in her action for
legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than
a declaration that his use of the documents and papers for the purpose of securing Dr.
Martin's admission as to their genuiness and authenticity did not constitute a violation
of the injunctive order of the trial court. By no means does the decision in that case
establish the admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of
violating the writ of preliminary injunction issued by the trial court, it was only because,
at the time he used the documents and papers, enforcement of the order of the trial
court was temporarily restrained by this Court. The TRO issued by this Court was
eventually lifted as the petition for certiorari filed by petitioner against the trial court's
order was dismissed and, therefore, the prohibition against the further use of the
documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring "the privacy of communication and correspondence
[to be] inviolable"3 is no less applicable simply because it is the wife (who thinks
herself aggrieved by her husband's infidelity) who is the party against whom the
constitutional provision is to be enforced. The only exception to the prohibition in the
Constitution is if there is a "lawful order [from a] court or when public safety or order
84
requires otherwise, as prescribed by law."4 Any violation of this provision renders the
evidence obtained inadmissible "for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in breaking
the drawers and cabinets of the other and in ransacking them for any telltale evidence
of marital infidelity. A person, by contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the constitutional protection is ever available
to him or to her.
The law insures absolute freedom of communication between the spouses by making
it privileged. Neither husband nor wife may testify for or against the other without the
consent of the affected spouse while the marriage subsists.6 Neither may be
examined without the consent of the other as to any communication received in
confidence by one from the other during the marriage, save for specified exceptions.7
But one thing is freedom of communication; quite another is a compulsion for each one
to share what one knows with the other. And this has nothing to do with the duty of
fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado, Romero and Puno, JJ., concur.
[G.R. No. L-32409. February 27, 1971.]
BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v.
HON. JUDGE VIVENCIO M. RUIZ, MISAEL P. VERA, in his capacity as
Commissioner of Internal Revenue, ARTURO LOGRONIO, RODOLFO DE LEON,
GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO, JOHN DOE,
JOHN DOE, JOHN DOE, and JOHN DOE, Respondents.
DECISION
VILLAMOR, J.:
This is an original action of certiorari, prohibition and mandamus, with prayer for a writ
of preliminary mandatory and prohibitory injunction. In their petition Bache & Co.
(Phil.), Inc., a corporation duly organized and existing under the laws of the
Philippines, and its President, Frederick E. Seggerman, pray this Court to declare null
and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25,
1970; to order respondents to desist from enforcing the same and/or keeping the
documents, papers and effects seized by virtue thereof, as well as from enforcing the
tax assessments on petitioner corporation alleged by petitioners to have been made
on the basis of the said documents, papers and effects, and to order the return of the
latter to petitioners. We gave due course to the petition but did not issue the writ of
preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:
On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue,
wrote a letter addressed to respondent Judge Vivencio M. Ruiz requesting the
issuance of a search warrant against petitioners for violation of Section 46(a) of the
National Internal Revenue Code, in relation to all other pertinent provisions thereof,
particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner
Rodolfo de Leon, one of herein respondents, to make and file the application for
search warrant which was attached to the letter.
In the afternoon of the following day, February 25, 1970, respondent De Leon and his
witness, respondent Arturo Logronio, went to the Court of First Instance of Rizal. They
brought with them the following papers: respondent Veras aforesaid letter-request; an
application for search warrant already filled up but still unsigned by respondent De
Leon; an affidavit of respondent Logronio subscribed before respondent De Leon; a
deposition in printed form of respondent Logronio already accomplished and signed by
him but not yet subscribed; and a search warrant already accomplished but still
unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note, he
instructed his Deputy Clerk of Court to take the depositions of respondents De Leon
and Logronio. After the session had adjourned, respondent Judge was informed that
the depositions had already been taken. The stenographer, upon request of
respondent Judge, read to him her stenographic notes; and thereafter, respondent
Judge asked respondent Logronio to take the oath and warned him that if his
deposition was found to be false and without legal basis, he could be charged for
perjury. Respondent Judge signed respondent de Leons application for search
warrant and respondent Logronios deposition, Search Warrant No. 2-M-70 was then
sign by respondent Judge and accordingly issued.
85
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents
served the search warrant petitioners at the offices of petitioner corporation on Ayala
Avenue, Makati, Rizal. Petitioners lawyers protested the search on the ground that no
formal complaint or transcript of testimony was attached to the warrant. The agents
nevertheless proceeded with their search which yielded six boxes of documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal
praying that the search warrant be quashed, dissolved or recalled, that preliminary
prohibitory and mandatory writs of injunction be issued, that the search warrant be
declared null and void, and that the respondents be ordered to pay petitioners, jointly
and severally, damages and attorneys fees. On March 18, 1970, the respondents, thru
the Solicitor General, filed an answer to the petition. After hearing, the court, presided
over by respondent Judge, issued on July 29, 1970, an order dismissing the petition
for dissolution of the search warrant. In the meantime, or on April 16, 1970, the Bureau
of Internal Revenue made tax assessments on petitioner corporation in the total sum
of P2,594,729.97, partly, if not entirely, based on the documents thus seized.
Petitioners came to this Court.
The petition should be granted for the following reasons:
1. Respondent Judge failed to personally examine the complainant and his witness.
The pertinent provisions of the Constitution of the Philippines and of the Revised Rules
of Court are:
"(3) The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, and the persons or
things to be seized." (Art. III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined by the
judge or justice of the peace after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. The judge or justice of the peace must,
before issuing the warrant, personally examine on oath or affirmation the complainant
and any witnesses he may produce and take their depositions in writing, and attach
them to the record, in addition to any affidavits presented to him." (Rule 126, Revised
Rules of Court.)
The examination of the complainant and the witnesses he may produce, required by
Art. III, Sec. 1, par. 3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the
Revised Rules of Court, should be conducted by the judge himself and not by others.
The phrase "which shall be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce," appearing in the
said constitutional provision, was introduced by Delegate Francisco as an amendment
to the draft submitted by the Sub-Committee of Seven. The following discussion in the
Constitutional Convention (Laurel, Proceedings of the Philippine Constitutional
Convention, Vol. III, pp. 755-757) is enlightening:
"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano.
En los casos de una necesidad de actuar inmediatamente para que no se frusten los
fines de la justicia mediante el registro inmediato y la incautacion del cuerpo del delito,
no cree Su Seoria que causaria cierta demora el procedimiento apuntado en su
enmienda en tal forma que podria frustrar los fines de la justicia o si Su Seoria
encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia
con los derechos del individuo en su persona, bienes etcetera, etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria
pregunta por la siguiente razon: el que solicita un mandamiento de registro tiene que
hacerlo por escrito y ese escrito no aparecer en la Mesa del Juez sin que alguien vaya
el juez a presentar ese escrito o peticion de sucuestro. Esa persona que presenta el
registro puede ser el mismo denunciante o alguna persona que solicita dicho
mandamiento de registro. Ahora toda la enmienda en esos casos consiste en que
haya peticion de registro y el juez no se atendra solamente a sea peticion sino que el
juez examiner a ese denunciante y si tiene testigos tambin examiner a los testigos.
"SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante
por escrito siempre requeriria algun tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos
en todo lo posible las vejaciones injustas con la expedicion arbitraria de los
mandamientos de registro. Creo que entre dos males debemos escoger. el menor.
x x x
"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we
are incorporating in our constitution something of a fundamental character. Now,
before a judge could issue a search warrant, he must be under the obligation to
examine personally under oath the complainant and if he has any witness, the
witnesses that he may produce . . ."
The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more
emphatic and candid, for it requires the judge, before issuing a search warrant, to
"personally examine on oath or affirmation the complainant and any witnesses he may
produce . . ."
Personal examination by the judge of the complainant and his witnesses is necessary
to enable him to determine the existence or non-existence of a probable cause,
pursuant to Art. III, Sec. 1, par. 3, of the Constitution, and Sec. 3, Rule 126 of the
Revised Rules of Court, both of which prohibit the issuance of warrants except "upon
probable cause." The determination of whether or not a probable cause exists calls for
the exercise of judgment after a judicial appraisal of facts and should not be allowed to
be delegated in the absence of any rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent Judge
of the complainant (respondent De Leon) and his witness (respondent Logronio).
While it is true that the complainants application for search warrant and the witness
printed-form deposition were subscribed and sworn to before respondent Judge, the
latter did not ask either of the two any question the answer to which could possibly be
the basis for determining whether or not there was probable cause against herein
petitioners. Indeed, the participants seem to have attached so little significance to the
matter that notes of the proceedings before respondent Judge were not even taken. At
this juncture it may be well to recall the salient facts. The transcript of stenographic
86
notes (pp. 61-76, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of this
case in the court below shows that per instruction of respondent Judge, Mr. Eleodoro
V. Gonzales, Special Deputy Clerk of Court, took the depositions of the complainant
and his witness, and that stenographic notes thereof were taken by Mrs. Gaspar. At
that time respondent Judge was at the sala hearing a case. After respondent Judge
was through with the hearing, Deputy Clerk Gonzales, stenographer Gaspar,
complainant De Leon and witness Logronio went to respondent Judges chamber and
informed the Judge that they had finished the depositions. Respondent Judge then
requested the stenographer to read to him her stenographic notes. Special Deputy
Clerk Gonzales testified as follows"A A n d a f t e r fi n i s h i n g r e a d i n g t h e
stenographic notes, the Honorable Judge requested or instructed them, requested Mr.
Logronio to raise his hand and warned him if his deposition will be found to be false
and without legal basis, he can be charged criminally for perjury. The Honorable Court
told Mr. Logronio whether he affirms the facts contained in his deposition and the
affidavit executed before Mr. Rodolfo de Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."
Thereafter, respondent Judge signed the search warrant.
The participation of respondent Judge in the proceedings which led to the issuance of
Search Warrant No. 2-M-70 was thus limited to listening to the stenographers
readings of her notes, to a few words of warning against the commission of perjury,
and to administering the oath to the complainant and his witness. This cannot be
consider a personal examination. If there was an examination at all of the complainant
and his witness, it was the one conducted by the Deputy Clerk of Court. But, as stated,
the Constitution and the rules require a personal examination by the judge. It was
precisely on account of the intention of the delegates to the Constitutional Convention
to make it a duty of the issuing judge to personally examine the complainant and his
witnesses that the question of how much time would be consumed by the judge in
examining them came up before the Convention, as can be seen from the record of
the proceedings quoted above. The reading of the stenographic notes to respondent
Judge did not constitute sufficient compliance with the constitutional mandate and the
rule; for by that manner respondent Judge did not have the opportunity to observe the
demeanor of the complainant and his witness, and to propound initial and follow-up
questions which the judicial mind, on account of its training, was in the best position to
conceive. These were important in arriving at a sound inference on the all-important
question of whether or not there was probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National
Internal Revenue Code in relation to all other pertinent provisions thereof particularly
Secs. 53, 72, 73, 208 and 209." The question is: Was the said search warrant issued
"in connection with one specific offense," as required by Sec. 3, Rule 126?
To arrive at the correct answer it is essential to examine closely the provisions of the
Tax Code referred to above. Thus we find the following:
Sec. 46(a) requires the filing of income tax returns by corporations.
Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns and for rendering
false and fraudulent returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to
supply the information required under the Tax Code.
Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or
manufactures any article subject to a specific tax, without having paid the privilege tax
therefore, or who aids or abets in the conduct of illicit distilling, rectifying,
compounding, or illicit manufacture of any article subject to specific tax . . .," and
provides that in the case of a corporation, partnership, or association, the official and/
or employee who caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross
value of output removed, or to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under the
Tax Code. The first is the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of
income tax returns), which are interrelated. The second is the violation of Sec. 53
(withholding of income taxes at source). The third is the violation of Sec. 208 (unlawful
pursuit of business or occupation); and the fourth is the violation of Sec. 209 (failure to
make a return of receipts, sales, business or gross value of output actually removed or
to pay the tax due thereon). Even in their classification the six above-mentioned
provisions are embraced in two different titles: Secs. 46(a), 53, 72 and 73 are under
Title II (Income Tax); while Secs. 208 and 209 are under Title V (Privilege Tax on
Business and Occupation).
Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967 (20
SCRA 383), is not applicable, because there the search warrants were issued for
"violation of Central Bank Laws, Internal Revenue (Code) and Revised Penal Code;"
whereas, here Search Warrant No 2-M-70 was issued for violation of only one code,
i.e., the National Internal Revenue Code. The distinction more apparent than real,
because it was precisely on account of the Stonehill incident, which occurred
sometime before the present Rules of Court took effect on January 1, 1964, that this
Court amended the former rule by inserting therein the phrase "in connection with one
specific offense," and adding the sentence "No search warrant shall issue for more
than one specific offense," in what is now Sec. 3, Rule 126. Thus we said in Stonehill:
"Such is the seriousness of the irregularities committed in connection with the disputed
search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the
former Rules of Court that a search warrant shall not issue but upon probable cause in
connection with one specific offense. Not satisfied with this qualification, the Court
added thereto a paragraph, directing that no search warrant shall issue for more than
one specific offense."
3. The search warrant does not particularly describe the things to be seized.
The documents, papers and effects sought to be seized are described in Search
Warrant No. 2-M-70 in this manner:
87
"Unregistered and private books of accounts (ledgers, journals, columnars, receipts
and disbursements books, customers ledgers); receipts for payments received;
certificates of stocks and securities; contracts, promissory notes and deeds of sale;
telex and coded messages; business communications, accounting and business
records; checks and check stubs; records of bank deposits and withdrawals; and
records of foreign remittances, covering the years 1966 to 1970."
The description does not meet the requirement in Art III, Sec. 1, of the Constitution,
and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should
particularly describe the things to be seized.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:
"The grave violation of the Constitution made in the application for the contested
search warrants was compounded by the description therein made of the effects to be
searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or paper
showing all business transactions including disbursement receipts, balance sheets and
related profit and loss statements.
"Thus, the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights that the things to be seized
be particularly described as well as tending to defeat its major objective: the
elimination of general warrants."
While the term "all business transactions" does not appear in Search Warrant No. 2-
M-70, the said warrant nevertheless tends to defeat the major objective of the Bill of
Rights, i.e., the elimination of general warrants, for the language used therein is so all-
embracing as to include all conceivable records of petitioner corporation, which, if
seized, could possibly render its business inoperative.
In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had occasion
to explain the purpose of the requirement that the warrant should particularly describe
the place to be searched and the things to be seized, to wit:
". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically
require that a search warrant should particularly describe the place to be searched and
the things to be seized. The evident purpose and intent of this requirement is to limit
the things to be seized to those, and only those, particularly described in the search
warrant to leave the officers of the law with no discretion regarding what articles
they shall seize, to the end that unreasonable searches and seizures may not be
made, that abuses may not be committed. That this is the correct interpretation of
this constitutional provision is borne out by American authorities."
The purpose as thus explained could, surely and effectively, be defeated under the
search warrant issued in this case.
A search warrant may be said to particularly describe the things to be seized when the
description therein is as specific as the circumstances will ordinarily allow (People v.
Rubio; 57 Phil. 384); or when the description expresses a conclusion of fact not of
law by which the warrant officer may be guided in making the search and seizure
(idem., dissent of Abad Santos, J.,); or when the things described are limited to those
which bear direct relation to the offense for which the warrant is being issued (Sec. 2,
Rule 126, Revised Rules of Court). The herein search warrant does not conform to any
of the foregoing tests. If the articles desired to be seized have any direct relation to an
offense committed, the applicant must necessarily have some evidence, other than
those articles, to prove the said offense; and the articles subject of search and seizure
should come in handy merely to strengthen such evidence. In this event, the
description contained in the herein disputed warrant should have mentioned, at least,
the dates, amounts, persons, and other pertinent data regarding the receipts of
payments, certificates of stocks and securities, contracts, promissory notes, deeds of
sale, messages and communications, checks, bank deposits and withdrawals, records
of foreign remittances, among others, enumerated in the warrant.
Respondents contend that certiorari does not lie because petitioners failed to file a
motion for reconsideration of respondent Judges order of July 29, 1970. The
contention is without merit. In the first place, when the questions raised before this
Court are the same as those which were squarely raised in and passed upon by the
court below, the filing of a motion for reconsideration in said court before certiorari can
be instituted in this Court is no longer a prerequisite. (Pajo, etc., Et. Al. v. Ago, Et Al.,
108 Phil., 905). In the second place, the rule requiring the filing of a motion for
reconsideration before an application for a writ of certiorari can be entertained was
never intended to be applied without considering the circumstances. (Matutina v.
Buslon, Et Al., 109 Phil., 140.) In the case at bar time is of the essence in view of the
tax assessments sought to be enforced by respondent officers of the Bureau of
Internal Revenue against petitioner corporation, On account of which immediate and
more direct action becomes necessary. (Matute v. Court of Appeals, Et Al., 26 SCRA
768.) Lastly, the rule does not apply where, as in this case, the deprivation of
petitioners fundamental right to due process taints the proceeding against them in the
court below not only with irregularity but also with nullity. (Matute v. Court of Appeals,
Et Al., supra.)
It is next contended by respondents that a corporation is not entitled to protection
against unreasonable search and seizures. Again, we find no merit in the contention.
"Although, for the reasons above stated, we are of the opinion that an officer of a
corporation which is charged with a violation of a statute of the state of its creation, or
of an act of Congress passed in the exercise of its constitutional powers, cannot refuse
to produce the books and papers of such corporation, we do not wish to be understood
as holding that a corporation is not entitled to immunity, under the 4th Amendment,
against unreasonable searches and seizures. A corporation is, after all, but an
association of individuals under an assumed name and with a distinct legal entity. In
organizing itself as a collective body it waives no constitutional immunities appropriate
to such body. Its property cannot be taken without compensation. It can only be
proceeded against by due process of law, and is protected, under the 14th
Amendment, against unlawful discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L.
ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a
different rule applied to a corporation, the ground that it was not privileged from
producing its books and papers. But the rights of a corporation against unlawful search
and seizure are to be protected even if the same result might have been achieved in a
88
lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of America, 251
U.S. 385, 64 L. ed. 319.)
In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right of
a corporation to object against unreasonable searches and seizures, thus:
"As regards the first group, we hold that petitioners herein have no cause of action to
assail the legality of the contested warrants and of the seizures made in pursuance
thereof, for the simple reason that said corporations have their respective
personalities, separate and distinct from the personality of herein petitioners,
regardless of the amount of shares of stock or the interest of each of them in said
corporations, whatever, the offices they hold therein may be. Indeed, it is well settled
that the legality of a seizure can be contested only by the party whose rights have
been impaired thereby, and that the objection to an unlawful search and seizure is
purely personal and cannot be availed of by third parties. Consequently, petitioners
herein may not validly object to the use in evidence against them of the documents,
papers and things seized from the offices and premises of the corporations adverted to
above, since the right to object to the admission of said papers in evidence belongs
exclusively to the corporations, to whom the seized effects belong, and may not be
invoked by the corporate officers in proceedings against them in their individual
capacity . . ."
In the Stonehill case only the officers of the various corporations in whose offices
documents, papers and effects were searched and seized were the petitioners. In the
case at bar, the corporation to whom the seized documents belong, and whose rights
have thereby been impaired, is itself a petitioner. On that score, petitioner corporation
here stands on a different footing from the corporations in Stonehill.
The tax assessments referred to earlier in this opinion were, if not entirely as
claimed by petitioners at least partly as in effect admitted by respondents
based on the documents seized by virtue of Search Warrant No. 2-M-70. Furthermore,
the fact that the assessments were made some one and one-half months after the
search and seizure on February 25, 1970, is a strong indication that the documents
thus seized served as basis for the assessments. Those assessments should
therefore not be enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-
M-70 issued by respondent Judge is declared null and void; respondents are
permanently enjoined from enforcing the said search warrant; the documents, papers
and effects seized thereunder are ordered to be returned to petitioners; and
respondent officials the Bureau of Internal Revenue and their representatives are
permanently enjoined from enforcing the assessments mentioned in Annex "G" of the
present petition, as well as other assessments based on the documents, papers and
effects seized under the search warrant herein nullified, and from using the same
against petitioners in any criminal or other proceeding. No pronouncement as to costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Makasiar,
JJ., concur.
Reyes, J.B.L., J., concurs with Mr. Justice Barredo.
Castro, J., concurs in the result.
[G.R. No. 99050. September 2, 1992.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CONWAY B. OMAWENG,
Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Joel C. Obar for Accused-Appellant.
SYLLABUS
1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF
PROHIBITED DRUGS; PROOF OF OWNERSHIP THEREOF BY THE ACCUSED
NOT REQUIRED. The accused contends that the prosecution failed to prove that
he is the owner of the marijuana found inside the travelling bag which he had in his
vehicle, a Ford Fiera Proof of ownership is immaterial. Accused was prosecuted for the
dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II
of R.A. No. 6425, as amended. This section does not require that for one to be liable
for participating in any of the proscribed transactions enumerated therein, he must be
the owner of the prohibited drug. This section penalizes the pusher, who need not be
the owner of the prohibited drug. The law defines pusher as "any person who sells,
administers, delivers, or gives away to another, on any terms whatsoever, or
distributes, dispatches in transit or transports any dangerous drug or who acts as a
broker in any of such transactions, in violation of this Act. [Section 2 (m), R.A. No.
6425, as amended.] In People v. Alfonso, [186 SCRA (1990)] where the accused was
charged with the unlawful transportation of marijuana under the aforesaid Section 4,
this Court ruled that ownership is not a basic issue.
2. R E M E D I A L L AW; E V I D E N C E ; C I R C U M S TA N T I A L E V I D E N C E
COMBINATION THEREOF; WARRANTS A CONVICTION BEYOND REASONABLE
DOUBT. The facts, as proven by the prosecution, establish beyond cavil that the
accused was caught in the act of transporting the prohibited drug or, in other words, in
flagrante delicto. That he knew fully well what he was doing is shown beyond moral
certainty by the following circumstances: (a) the prohibited drug was found in a
travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind a
spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loaded the
bag was under his absolute control, pursuant to Section 4, Rule 133 of the Rules of
Court (on circumstantial evidence), the combination of all these circumstances is such
as to produce a conviction beyond reasonable doubt. Such circumstances, unrebutted
by strong and convincing evidence by the accused, even gave rise to the presumption
that he is the owner of the prohibited drug. [Section 3(j), Rule 131, Rules of Court.]
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCH & SEIZURE; WHEN DEEMED WAIVED. Accused was
not subjected to any search which may be stigmatized as a violation of his
Constitutional right against unreasonable searches and seizures. [Section 2, Article III,
1987 Constitution.] If one had been made, this Court would be the first to condemn it
"as the protection of the citizen and the maintenance of his constitutional rights is one
of the highest duties and privileges of the Court." [Rodriguez v. Villamiel, 65 Phil. 230
(1937).] He willingly gave prior consent to the search and voluntarily agreed to have it
conducted on his vehicle and travelling bag. Thus, the accused waived his right
89
against unreasonable searches and seizures As this Court stated in People v.
Malasugui: (63 Phil. 221, 226 [1936]. See also Vda. de Garcia v. Locsin, 65 Phil. 689
[1938]; People v. Donato, 198 SCRA 130 [1991]; People v. Rodrigueza, 205 SCRA 791
[1992].)." . . When one voluntarily submits to a search or consents to have it made of
(sic) his person or premises, he is precluded from later complaining thereof (Cooley,
Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from
unreasonable search may, like every right, be waived and such waiver may be made
either expressly or impliedly." Since in the course of the valid search forty-one (41)
packages of drugs were found, it behooved the officers to seize the same; no warrant
was necessary for such seizure. Besides, when said packages were identified by the
prosecution witnesses and later on formally offered in evidence, the accused did not
raise any objection whatsoever.
DECISION
DAVIDE, JR., J.:
Accused Conway B. Omaweng was originally indicted for the violation of Section 4,
Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of
1972, as amended, in a criminal complaint filed with the Municipal Trial Court of
Bontoc, Mountain Province on 12 September 1988. 1 Upon his failure to submit
counter-affidavits despite the granting of an extension of time to do so, the court
declared that he had waived his right to a preliminary investigation and, finding
probable cause against the accused, ordered the elevation of the case to the proper
court. 2
On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed an
Information charging the accused with the violation of Section 47 Article II of the
Dangerous Drugs Act of 1972, as amended. The accusatory portion thereof reads:
"That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, and
within the jurisdiction of this Honorable Court, the above-named accused, without
being authorized by law, did then and there willfully, unlawfully and feloniously dispatch
in transit or transport in a Ford Fiera, owned and driven by him, 10 1/4 kilos of
processed marijuana in powder form contained in al plastic bags of different sizes
which were placed in a travelling bag destained (sic) and intended for delivery,
disposition and sale in Sagada, Mountain Province, with full knowledge that said
processed marijuana is (sic) prohibited drug or from which (sic) prohibited drug maybe
manufactured.
CONTRARY TO LAW." 3
The case was docketed as Criminal Case No. 713.
After his motion for reinvestigation was denied by the Provincial Fiscal, 4 the accused
entered a plea of not guilty during his arraignment on 20 June 1989.
During the trial on the merits, the prosecution presented four (4) witnesses. The
accused did not present any evidence other than portions of the Joint Clarificatory
Sworn Statement, dated 23 December 1988, of prosecution witnesses Joseph Layong
and David Fomocod.
On 21 March 1991, the trial court promulgated its Judgment 5 convicting the accused
of the crime of transporting prohibited drugs penalized under Section 4, Article II of
R.A. No. 6425, as amended. The dispositive portion of the decision reads:
"WHEREFORE, judgment is hereby rendered imposing upon the accused herein the
penalty of life imprisonment and a fine of Twenty Five Thousand Pesos.
Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs subject of the crime
are ordered confiscated and forfeited in favor of the Government. Accordingly, it is
further directed that such drugs so confiscated and forfeited be destroyed without
delay per existing rules and regulations on the matter.
Costs against the accused.
SO ORDERED." 6
Hence, this appeal.
In the Appellants Brief, Accused imputes upon the trial court the commission of the
following errors.
"I
. . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE
ARRESTING OFFICERS TO THE EFFECT THAT THE ACCUSED IS NOT THE
OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS CASE.
III
. . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE INSTANT CASE
IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN OBTAINED IN VIOLATION OF
THE CONSTITUTIONAL RIGHT OF THE ACCUSED AGAINST UNREASONABLE
SEARCH (sic) AND SEIZURE." 7
The appeal is without merit. The decision appealed from must be upheld.
After a careful review and evaluation of the evidence, We find to have been fully
proven the following facts as summarized by the Solicitor General in the Brief for the
Appellee. 8
"In the morning of September 12, 1988, Joseph Layong, a PC constable with the Mt.
Province PC Command at Bontoc, Mt. Province proceeded with other PC soldiers to
Barrio Dantay, Bontoc and, per instruction of their officer, Capt. Eugene Martin, put up
a checkpoint at the junction of the roads, one going to Sagada and the other to Bontoc
(TSN, November 9, 1989, pp. 3-4). They stopped and checked all vehicles that went
through the checkpoint (TSN, April 5, 1990, p. 12).
At about 9:15 A.M., Layong and his teammate, Constable David Osborne Famocod
(sic), saw and flagged down a cream-colored Ford Fiera bearing Plate No. ABT-634
coming from the Bontoc Poblacion and headed towards Baguio (TSN, November 9,
1989, pp. 4-5, 8). The vehicle was driven by appellant and had no passengers (TSN,
November 9, 1989, pp. 4-5).
Layong and his companions asked permission to inspect the vehicle and appellant
acceded to the request. (TSN, November 9, 1989, pp. 4-5). When they peered into the
rear of the vehicle, they saw a travelling bag which was partially covered by the rim of
a spare tire under the passenger seat on the right side of the vehicle (TSN, November
9, 1989, pp. 6, 10, 11).
90
 Layong and his companions asked permission to see the contents of the bag (TSN,
November 9, 1989, p. 6). Appellant consented to the request but told them that it only
contained some clothes (TSN, November 9, 1989, p. 6). When Layong opened the
bag, he found that it contained forty-one (41) plastic packets of different sizes
containing pulverized substances (TSN, November 9, 1989, pp. 7, 9).
Layong gave a packet to his team leader, constable David Osborne Fomocod, who,
after sniffing the stuff concluded that it was marijuana (TSN, November 9, 1989, p. 16).
The PC constables, together with appellant, boarded the latters Ford Fiera and
proceeded to the Bontoc poblacion to report the incident to the PC Headquarters
(TSN, November 9, 1989, pp. 7-8) The prohibited drugs were surrendered to the
evidence custodian, Sgt. Angel Pokling (TSN, November 9, 1989, pp. 7-8).
Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La Trinidad,
Benguet, who has conducted more than 2500 professional examinations of marijuana,
shabu and cocaine samples, conducted two chemistry examinations of the substance
contained in the plastic packets taken from appellant and found them to be positive for
hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)." 9
Anent the first assigned error, the accused contends that the prosecution failed to
prove that he is the owner of the marijuana found inside the travelling bag which he
had in his vehicle, a Ford Fiera Proof of ownership is immaterial. Accused was
prosecuted for the dispatching in transit or transporting of prohibited drugs pursuant to
Section 4, Article II of R.A. No. 6425, as amended. This section does not require that
for one to be liable for participating in any of the proscribed transactions enumerated
therein, he must be the owner of the prohibited drug. It simply reads:
"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited
Drugs. The penalty of life imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any person who, unless
authorized by law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a broker in any of
such transactions. If the victim of the offense is a minor, or should a prohibited drug
involved in any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be imposed."
This section penalizes the pusher, who need not be the owner of the prohibited drug.
The law defines pusher as "any person who sells, administers, delivers, or gives away
to another, on any terms whatsoever, or distributes, dispatches in transit or transports
any dangerous drug or who acts as a broker in any of such transactions, in violation of
this Act. 10
In People v. Alfonso, 11 where the accused was charged with the unlawful
transportation of marijuana under the aforesaid Section 4, this Court ruled that
ownership is not a basic issue.
The facts, as proven by the prosecution, establish beyond cavil that the accused was
caught in the act of transporting the prohibited drug or, in other words, in flagrante
delicto. That he knew fully well what he was doing is shown beyond moral certainty by
the following circumstances: (a) the prohibited drug was found in a travelling bag, (b)
he is the owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he
was travelling alone, and (e) the Ford Fiera in which he loaded the bag was under his
absolute control, pursuant to Section 4, Rule 133 of the Rules of Court (on
circumstantial evidence), the combination of all these circumstances is such as to
produce a conviction beyond reasonable doubt. Such circumstances, unrebutted by
strong and convincing evidence by the accused, even gave rise to the presumption
that he is the owner of the prohibited drug. 12
The second assigned error is devoid of merit. The declaration in the joint clarificatory
sworn statement executed by the apprehending officers, that the marijuana subject of
the case was surreptitiously placed by an unknown person in the bag of the accused,
is not supported by evidence. Said sworn statement cannot be used as a basis for
exoneration because the very same officers who signed the same reiterated on the
witness stand their statements in their original affidavit implicating the accused, both
the criminal complaint before the Municipal Trial Court of Lontoc and the information in
this case were based on this original affidavit. No probative value could be assigned to
it not only because it was procured by the defense under questionable circumstances,
but also because the affiants therein merely expressed their personal opinion. The trial
courts correct exposition on this point, to which nothing more may be added, deserves
to be quoted, thus:
"From the portions of the Joint Clarificatory Sworn Statement- of prosecution
witnesses Layong and Fomocod cited (Exhs. "I" to "I-C" ; p 155, Record), the defense
would want this Court to draw the inference that the accused Conway Omaweng is
innocent as confirmed by no less than the persons who apprehended the suspect in
flagranti (sic). In other words, that the said accused is not the owner of the contraband
confiscated but someone else; that to (sic) mysterious individual placed the prohibited
articles inside the travelling bag of the accused without the knowledge and consent of
the latter; and that the identity of this shadowy third person is known by the PC/INP
investigators. The isolated declarations, albeit under oath are much too asinine to be
true and do not affect the credibilities of the witnesses affiants and the truth of their
affirmations on the stand. As gleaned from parts of the record of the reinvestigation of
this case conducted by the Provincial Fiscal (Exhs "G" and "D" ; pp. 158 and 161,
Record), it appears that Layong and Fomocod were prevailed upon to affix their
signatures to (sic) the document styled as Joint Clarificatory Sworn Statement by
interested persons in a vain ploy to extricate the accused from the morass he got
himself into. Testifying in open court, the same witnesses maintained the tenor of their
original affidavit supporting the filing of the criminal complaint in the lower court (Exh.
"C" ; p. 2, Record) No additional information was elicited from said witnesses during
their examination from which it can reasonably be deduced that a third person instead
of the accused is the culprit and that the suspect is being framed-up for a crime he did
not commit. Nonetheless, granting arguendo that the declarations of Layong and
Fomocod now the bone of contention, are on the level, the same are but mere
opinions and conclusions without bases. Any which way, to believe that any person in
his right mind owning several kilos of hot hashish worth tens of thousands of pesos
would simply stash it away in the travelling bag of someone he has no previous
agreement with is a mockery of common sense. And to think further that the PC/INP
agents know of such fact yet they kept the vital information under confidential
Status (whatever that means in police parlance) while an innocent person is being
prosecuted and practically in the shadow of the gallows for the offense would be
stretching human credulity to the snapping point. By and large, the fact remains as the
circumstances logically indicate that the accused Conway Omaweng has knowledge of
the existence of the contraband inside his vehicle and he was caught red-handed
transporting the hot stuff." 13
91
The third assignment of error hardly deserves any consideration Accused was not "A" The bag was not positively identified to be the same bag allegedly found inside the
subjected to any search which may be stigmatized as a violation of his Constitutional vehicle driven by the accused. The arresting officers failed to show any identifying
right against unreasonable searches and seizures. 14 If one had been made, this marks; thug, said bag is an irrelevant evidence not admissible in court;
Court would be the first to condemn it "as the protection of the citizen and the "A-1" to "A-40" Objected to also as irrelevant as the 40 bags now being offered are not
maintenance of his constitutional rights is one of the highest duties and privileges of the same bags alleged in the information which is 41 bags. The prosecution failed to
the Court." 15 He willingly gave prior consent to the search and voluntarily agreed to proved (sic) beyond reasonable doubt that Exhibit "A-1"
have it conducted on his vehicle and travelling bag. Prosecution witness Joseph
Layong testified thus: to "A-40" are the same bags allegedly taken from inside Exhibit "A" because what is
supposed to be inside the bag are 41 bags and not 40 bags."
x x x
"PROSECUTOR AYOCHOK:
WHEREFORE, the decision of Branch 36 of the Regional Trial t of Bontoc, Mountain
Q When you and David Fomocod saw the travelling bag, what did you do? Province of 21 March 1991 in Criminal Case No. 713 finding the accused CONWAY B.
A When we saw that travelling bag, we asked the driver if we could see the OMAWENG guilty beyond reasonable doubt of the crime charged, is hereby
contents. AFFIRMED.
Q And what did or what was the reply of the driver, if there was any? Costs against the accused.
A He said you can see the contents but those are only clothings (sic). SO ORDERED.
Q When he said that, what did you do? Gutierrez, Jr., Bidin and Romero, JJ., concur.
A We asked him if we could open and see it. Feliciano, J., is on leave.
Q When you said that, what did he tell you?
A He said you can see it.
Q And when he said you can see and open it, what did you do?
A When I went inside and opened the bag, I saw that it was not clothings (sic)
that was contained in the bag.
Q And when you saw that it was not clothings (sic), what did you do?
A When I saw that the contents were not clothes, I took some of the contents
and showed it to my companion Fomocod and when Fomocod smelled it, he said it
was marijuana." 16
This testimony was not dented on cross-examination or rebutted by the accused for he
chose not to testify on his own behalf.
Thus, the accused waived his right against unreasonable searches and seizures As
this Court stated in People v. Malasugui: 17
". . . When one voluntarily submits to a search or consents to have it made of (sic) his
person or premises, he is precluded from later complaining thereof (Cooley,
Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from
unreasonable search may, like every right, be waived and such waiver may be made
either expressly or impliedly."
Since in the course of the valid search forty-one (41) packages of drugs were found, it
behooved the officers to seize the same; no warrant was necessary for such seizure.
Besides, when said packages were identified by the prosecution witnesses and later
on formally offered in evidence, the accused did not raise any objection whatsoever.
Thus, in the accuseds Comments And/Or Objections To Offer of Evidence, 18 We
merely find the following:
"EXHIBIT COMMENTS AND/OR OBJECTIONS

92
G.R. No. L-27968December 3, 1975
JOSE G. LOPEZ and TOMAS VELASCO, petitioners,
vs.
COMMISSIONER OF CUSTOMS, COLLECTOR OF CUSTOMS OF DAVAO,
CHAIRMAN OF THE ASAC, ACTING DIRECTOR, NATIONAL BUREAU OF
INVESTIGATION, CITY FISCAL OF DAVAO, SENIOR NBI AGENT OF DAVAO,
EARL REYNOLDS, AND/OR ANY OF THEIR AUTHORIZED REPRESENTATIVES,
respondents.
A. Romero for petitioners.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico
P. de Castro and Solicitor Augusto M. Amores for respondents.
FERNANDO, J.:
This Court, understandably and appropriately in the decision of cases coming before it,
is called upon to act with due care to avoid putting obstacles to the governmental
policy "to minimize, if not to do away entirely, with the evil and corruption that
smuggling brings in its wake ..." 1 Nonetheless, the steps taken by administrative
authorities to implement such a laudable objective must not be repugnant to nor in
conflict with constitutional rights. To be more specific, when the guarantee against
unreasonable search and seizure is invoked, there is a need to scrutinize the facts
rigorously to preclude any infringement thereof. In this special civil action for certiorari,
prohibition and mandamus which arose from the seizures made by the Collector of
Customs of Davao of 1,480 sacks of copra and 86 sacks of coffee from the M/V motor
vessel Jolo Lema, our decision of November 29, 1974 in Nasiad v. Court of Tax
Appeals 2 made clear that there was no failure to comply with the requirements of the
law in effecting the same. The seizure was therefore declared lawful by the Court of
Tax Appeals, and its decision was affirmed by us. 3 The only question left then is
whether the search conducted by a party headed by respondent Earl Reynolds, Senior
NBI Agent of Davao, 4 without the search warrant for the hotel room of petitioner
Tomas Velasco, who entered into a contract with the other petitioner, Jose G. Lopez,
the awardee of such Philippine Reparations Commission vessel, for its operation and
use ostensibly for fishing, 5 is violative of such constitutional provision. 6 The defense
interposed by respondents is that there was consent. A careful scrutiny of the
pleadings reveals that such indeed was the case. We find for respondents and dismiss
the action.
The relevant facts as found in the aforesaid Nasiad decision read as follows: "As noted
in the appealed decision, the issue submitted "for resolution is the legality of the
seizure made by the Collector of Customs of Davao of the 1,408 sacks of copra and
86 sacks of coffee allegedly owned by the petitioners." Then came this portion:
"Petitioners claim that the 1,408 sacks of copra and 86 sacks of coffee in question
were purchased in Kiamba, Lumatin, and Lumasal, all in the province of Cotabato,
from a certain Osmea Juanday. Petitioners contend that, inasmuch as the said goods
were not imported and of foreign origin, they are not legally subject to seizure and
forfeiture. They likewise contend that the forfeiture made by the Collector of Customs
of Davao was invalid because the said forfeiture was based on documents and papers
which were illegally seized by agents of the Government through violence and
intimidation. Respondent denies petitioners' claim. He contends that the evidence is
sufficient to hold that the goods in question came from Indonesia and subsequently
brought to the Philippines in violation of our laws and, therefore, subject to forfeiture;
and that the Indonesian documents and papers allegedly secured illegally by the
combined team of NBI, PC and RASAC agents stationed in Davao, were in fact
lawfully and validly secured by them. Consequently, said documents and papers are
admissible in evidence in the forfeiture proceedings instituted administratively by the
Collector of Customs of Davao." It was then set forth: "The voluminous [evidence] of
record clearly show that M/V [Jolo Lema] had been under strict surveillance by the
combined team of agents of the NBI, PC, RASAC, and City Police of Davao prior to its
apprehension at a private wharf in Batjak, Sasa, Davao City; that the said M/V [Jolo
Lema] was skippered (sic) by Capt. Aquilino Pantinople and chartered by Mr. Tomas
Velasco; during the period from the latter part of August to September 18, 1966, the
said vessel was in Indonesian waters where it loaded copra and coffee beans from
Taruna, Pitta and Mangenito, all of Indonesia ... ; that in its trip to Indonesia it brought
various merchandise from the Philippines which were exchanged and/or bartered for
copra and coffee beans and subsequently taken to Davao City ...; and that said vessel
passed Marore, Indonesia on September 18, 1966 on its way to Tahuna, Indonesia ...
before proceeding to Davao City where it was apprehended on September 19, 1966."
Then came the reference to the evidence and the testimonies of the witnesses of both
parties, being appraised by respondent Court, which did not find any ground to
discredit the finding of respondent Collector of Customs. As therein pointed out: "The
evidence does not show any plausible motive for respondent's witnesses to falsify the
truth because they represent different agencies of the government. From all
appearances, they have no personal interest whatsoever over the goods subject of the
forfeiture proceedings. Besides, petitioners have not adduced any evidence showing
that they were enemies of the witnesses for the government. In short, no iota of
evidence was ever presented by the petitioners to destroy the integrity of the
government witnesses and to cast a cloud of doubt on their testimonies." Also: "The
decision of the Collector of Customs of Davao shows that a petitioner herein and at the
same time one of the claimants of the confiscated copra and coffee beans, Mr. Ernesto
Lozada, is the Officer-in-Charge of the vessel M/V Jolo Lema. It is not surprising,
therefore, that the members of his crew repudiated their sworn statements given to
government agents." Then, lastly: "Moreover, petitioners failed to explain satisfactorily,
much less refute the vital testimony of Fiscal Mariano Umali of the Department of
Justice, Manila that the various Indonesian documents ... duly authenticated by the
Indonesian Consulate in Manila, show in clear detail that the vessel M/V Jolo Lema
was in Indonesia during the period from the latter part of August to September 18,
1966, and that it loaded copra and coffee beans therein before the said vessel
returned to Davao City on September 19, 1966. Petitioners' failure to successfully
dispute or destroy said testimony by competent and reliable evidence strongly
indicates that the copra and coffee beans in question were imported from Indonesia." "
7
On the question of the search of the hotel room, the petition alleged that at about 3:00
o'clock in the afternoon of September 19, 1966, when the vessel was searched, a
combined team of Constabulary and Regional Anti-Smuggling Center operatives
headed by NBI agent Earl Reynolds raided the hotel room then being rented by
petitioner Tomas Velasco without any search warrant and in the absence at the time of
such petitioner Tomas Velasco or the presence of any other person, except one Teofila
93
Ibaez, a mere manicurist of Davao City by occupation and "forcibly opened luggages
and boxes from which only several documents and papers were found, then seized,
confiscated and took away the same." 8 There was this refutation of such allegation in
the answer presented by respondents, represented by the then Solicitor General, 9
now Associate Justice, Antonio P. Barredo: "(a) After Captain Pantinople informed the
team that petitioner Tomas Velasco, the charterer of the vessel, had other documents
showing that vessel came from Indonesia carrying smuggled copra and coffee, some
members of the team proceeded to the room of petitioner Velasco at the Skyroom
Hotel in Davao City, to ask for said documents; (b) Although petitioner Velasco was not
inside the hotel room, respondent Reynolds, after identifying himself as a police officer
and after explaining his purpose, was allowed to enter the room by Mrs. Tomas
Velasco who subsequently volunteered to open the suitcases and baggages of
petitioner Velasco and delivered the documents and things contained therein to
respondent Reynolds; ... (c) The said police team did not search the room; neither did
the members thereof forcibly open the luggages and boxes nor seized and confiscated
the documents and things contained therein, since that was not necessary because ...
Mrs. Tomas Velasco voluntarily opened the baggages and suitcases and gave their
contents of documents and things to respondent Reynolds. Such fact is also
established by the joint affidavit of PC Lt. Romeo Arceo, Angel Huertas, Gregorio
Esperancilla, Wilfredo G. Agcaoili, Patricio Barnes and Lucero Cordero, a joint sworn
statement of Antonio Bonotan, Vicente Dubria, Alberto Morgady and Virgilio Humol;
and another affidavit of Pio Raganit and Winifredo Calamba, ... " 10
Thus, as noted at the outset, petitioners are not entitled to the remedies prayed for.
1. There has been marked receptivity on the part of this Court to claims based
on the protection of the search and seizure clause of the Constitution, whenever
properly invoked. So it was made clear from the leading case of Alvarez v. Court of
First
Instance. 11 It has been thus since then. 12 Such was the case likewise under
previous organic acts. 13 There is this succinct restatement of what is embraced in the
guarantee in the latest case of Lim v. Ponce de Leon, 14 with Justice Martin as
ponente: "There can be no question that without the proper search warrant, no public
official has the right to enter the premises of another without his consent for the
purpose of search and seizure." 15 It does not admit of doubt therefore that a search
or seizure cannot be stigmatized as unreasonable and thus offensive to the
Constitution if consent be shown. Such a view is implicit in People v. Malasugui. 16 For
this immunity from unwarranted intrusion is a personal right which may be waived
either expressly or impliedly. 17
The crucial question then is whether in this instance there was consent on the part of
the person who was the occupant of the hotel room then rented by petitioner Velasco.
It cannot be contended that such premises would be outside the constitutional
protection of a guarantee intended to protect one's privacy. It stands to reason that in
such a place, the insistence on being free from any unwelcome intrusion is likely to be
more marked. 18 Was there, however, consent sufficient in law to dispense with the
warrant? Respondents, as previously noted, contend that there was such consent.
They so alleged in their answer. Their memorandum would stress it further in these
words: "Here the wife of petitioner Tomas Velasco, upon being informed of the purpose
of the search by the officers, invited them to enter and search the hotel room and even
voluntarily gave the documents and things requested by said officers. This fact could
be gleaned from the following records of the two seizure cases involving the vessel M/
V Jolo Lema and its cargo of Indonesian copra and coffee: (a) On September 19,
1966, Teofila Ibaez, wife of petitioner Tomas Velasco, issued a written statement
which states that "... I have voluntarily and freely allowed my husband's and my
personal belongings to be searched and freely gave the following items." ... (b) On the
same date, she issued another certification which reads in part, viz.: "... That I have
voluntarily turned over for safekeeping and verification the following."... (c) Also on the
same date, she issued still another certification which reads partially, thus:"... that I
have freely and voluntarily allowed the search of my and my husband's personal
belongings and turn-over to the NBI of the following items."... (d) On October 13, 1966
the Davao City Police Department issued a certification to the effect that the petitioner
Tomas Velasco never filed any "report for robbery or other offenses ... against any
member of the NBI or the PC during the period from September 19, 1966 to the
present,"... ." 19 Their memorandum likewise included as an annex an affidavit from
Benjamin Doronal Y. Yaez, the assistant manager of the Skyroom Hotel. It was
worded thus: "That on September 19, 1966 at around 3:00 to 4:00 o'clock in the
afternoon, a joint NBI, PC and Davao City Police Commando Team conducted a
search on Room 220 of the Skyroom Hotel occupied by Mr. and Mrs. Tomas Velasco;
That before said search was conducted, [Teofila Ibaez], the actual occupant of the
room at the time, voluntarily consented to the request of Atty. [Earl Reynolds] and Lt.
[Romeo Arceo], to search their room (Rm. 220) after the latter introduced themselves
by showing their respective identifications cards; That during said search, upon the
request of Atty. [Reynolds] and Lt.[Arceo], [Teofila Ibaez] voluntarily opened her
handbag which was found to contain a .45 caliber pistol and likewise voluntarily
opened the maletas which were found to contain several papers and documents; That
receipts were duly issued to [Teofila Ibaez] which accounted for everything taken from
their room (Rm. No. 220) during the search, including said .45 caliber pistol, papers
and documents and that nothing was lost; That [Teofila Ibaez] signed the receipts and
received copies thereof; That [Teofila Ibaez] and I were present when the said search
was being conducted; That said search was conducted in a peaceful and orderly
manner ... ." 20
There was an attempt on the part of petitioners to counteract the force of the above
recital by an affidavit of one Corazon Y. Velasco, 21 who stated that she is the legal
wife of petitioner Tomas Velasco, and another by such petitioner himself 22 reiterating
such a fact and that the person who was present at his hotel room was one Teofila
Ibaez, "a manicurist by occupation ." 23 Their effort appurtenant thereto is doomed to
failure. If such indeed were the case, then it is much more easily understandable why
that person, Teofila Ibaez, who could be aptly described as the wrong person at the
wrong place and at the wrong time, would have signified her consent readily and
immediately. Under the circumstances, that was the most prudent course of action. It
would save her and even petitioner Velasco himself from any gossip or innuendo. Nor
could the officers of the law be blamed if they would act on the appearances. There
was a person inside who from all indications was ready to accede to their request.
Even common courtesy alone would have precluded them from inquiring too closely as
to why she was there. Under all the circumstances, therefore, it can readily be
concluded that there was consent sufficient in law to dispense with the need for a
search warrant. The petition cannot, therefore, prevail.
94
2. It was set forth at the outset that the state policy of minimizing, if not doing
away entirely with the festering sore of smuggling must be carried out with due respect
for constitutional rights. It is a truism in law that a desirable end cannot be attained by
illegal means. Whenever there is a showing therefore that the safeguards of the
fundamental law are disregarded, more specifically the guarantee against
unreasonable search and seizure, then judicial redress is appropriate. To repeat, such
is not the case here. Moreover, it may likewise be added that as previously mentioned
in Nasiad v. Court of Tax Appeals, 24 involving the very same occurrence, the only
difference being that the petitioners there were the importers of the smuggled goods,
this Court had affirmed the validity of the seizure proceeding. No injustice can
therefore be claimed by petitioners.
WHEREFORE, the petition for certiorari, prohibition and mandamus is dismissed.
Costs against petitioners.
Antonio, Muoz Palma, Aquino and Concepcion, Jr., JJ., concur.
Barredo, J., took no part.
G.R. No. L-95630June 18, 1992
SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners,
vs.
THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial
Court at Davao City; and BRIG. GEN. PANTALEON DUMLAO, Commanding
General, PC-Criminal Investigation Service, respondents.
PARAS, J.:
This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of
the Rules of Court: certiorari, to review the Order of the respondent Judge dated
October 2, 1990 denying herein petitioner's Motion for Hospital Confinement;
mandamus, to compel respondent Judge to resolve petitioners' long pending motion
for bail; and prohibition, to enjoin further proceedings on the ground that the legal basis
therefore is unconstitutional for being violative of the due process and equal protection
clauses of the Constitution.
The facts of this case are as follows:
Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St.,
Skyline Village. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was
promoted to the position of Assistant Administrator of the Social Security System
sometime in June, 1988, he and his family transferred to 130 K-8th St., East Kamias,
Quezon City, where they are presently residing. The care and upkeep of their
residence in Davao City was left to two (2) houseboys, Jimmy Favia and Eric Burgos,
who had their assigned quarters at a portion of the premises. The Veroys would
occasionally send money to Edna Soguilon for the salary of the said houseboys and
other expenses for the upkeep of their house. While the Veroys had the keys to the
interior of the house, only the key to the kitchen, where the circuit breakers were
located, was entrusted to Edna Soguilon to give her access in case of an emergency.
Hence, since 1988, the key to the master's bedroom as well as the keys to the
children's rooms were retained by herein Petitioners so that neither Edna Soguilon nor
the caretakers could enter the house.
On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting
upon a directive issued by Metrodiscom Commander Col. Franco Calida, raided the
house of herein petitioners in Davao City on information that the said residence was
being used as a safehouse of rebel soldiers. They were able to enter the yard with the
help of the caretakers but did not enter the house since the owner was not present and
they did not have a search warrant. Petitioner Ma. Luisa was contacted by telephone
in her Quezon City residence by Capt. Obrero to ask permission to search the house
in Davao City as it was reportedly being used as a hideout and recruitment center of
rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City to
witness the search but relented if the search would not be conducted in the presence
of Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a long time family
friend of the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt.
Obrero to Major Macasaet who answered that Ma. Luisa Veroy has called him twice by
telephone on the matter and that the permission was given on the condition that the
search be conducted in his presence.
The following day, Capt. Obrero and Major Macasaet met at the house of herein
petitioners in Skyline Village to conduct the search pursuant to the authority granted by
95
petitioner Ma. Luisa Veroy. The caretakers facilitated their entry into the yard, and
using the key entrusted to Edna Soguilon, they were able to gain entrance into the
kitchen. However, a locksmith by the name of George Badiang had to be employed to
open the padlock of the door leading to the children's room. Capt. Obrero and Major
Macasaet then entered the children's room and conducted the search. Capt. Obrero
recovered a .45 cal. handgun with a magazine containing seven (7) live bullets in a
black clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing
printed materials of RAM-SFP (samples of which were attached as Annexes "H" and
"H-1" of the petition) (Rollo, pp. 49-55) were also found in the children's room. A search
of the children's recreation and study area revealed a big travelling bag containing
assorted polo shirts, men's brief, two (2) pieces polo barong and short sleeve striped
gray polo. sweat shirt, two (2) pairs men's socks, a towel made in U.S.A., one blanket,
a small black bag, Gandhi brand, containing a book entitled "Islamic Revolution Future
Path of the Nation", a road map of the Philippines, a telescope, a plastic bag
containing assorted medicines and religious pamphlets was found in the master's
bedroom. Sgt. Leo Justalero was instructed by Capt. Obrero to make an inventory and
receipt of the articles seized, in the house (Annex "F" of the Petition, Rollo, p. 48). Said
receipt was signed by Eric Burgos, one of the caretakers, and George Badiang, the
locksmith, as witnesses. Sgt. Justalero turned over the articles to Sgt. Rodolfo Urbano
at the police station.
The case was referred for preliminary investigation to Quezon City Assistant
Prosecutor Rodolfo Ponferrada who was designated Acting Provincial Prosecutor for
Davao City by the Department of Justice through Department Order No. 88 dated May
16, 1990. In a resolution dated August 6, 1990, Fiscal Ponferrada recommended the
filing of an information against herein petitioners for Violation of Presidential Decree
No. 1866 (Illegal Possession of Firearms and Ammunitions in Furtherance of
Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990. an
Information for the said offense was filed by the Office of the City Prosecutor of Davao
City before the Regional Trial Court, 11th Judicial Region, Davao City, docketed as
Criminal Case No. 20595-90 and entitled "People of the Philippines v. Atty. Leopoldo
Veroy and Mrs. Maria Luisa Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail
was recommended by the prosecution.
The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was
received by the petitioners on August 13, 1990. On the same day, the latter filed a
Motion for Bail before herein respondent Judge Layague which was denied on August
17, 1990 for being premature since at that time, petitioners had not yet been arrested.
Despite the fact that the warrants for their arrest have not yet been served on them,
herein petitioners voluntarily surrendered themselves to Brig. Gen. Pantaleon Dumlao,
PC-CIS Chief, since it was the CIS that initiated the complaint. However, the latter
refused to receive them on the ground that his office has not yet received copies of
their warrants of arrest.
In the meantime, on August 15, 1990, herein petitioners were admitted to the St.
Luke's Hospital for various ailments brought about or aggravated by the stress and
anxiety caused by the filing of the criminal complaint. On August 17, 1990, Brig. Gen.
Dumlao granted their request that they be allowed to be confined at the hospital and
placed under guard thereat.
In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los
Santos, made its return to the trial court informing the latter of the voluntary surrender
of herein petitioners and the fact that they were under hospital confinement. Herein
Petitioner reiterated their Motion for Bail. In an Order dated August 24, 1990 (Annex
"M" of the Petition, Rollo, p. 74), the hearing for the Motion for Ball was set for August
31, 1990 to enable the prosecution to present evidence it opposition to said motion.
The prosecution filed its written opposition (Annex "N" of the Petition, Rollo, p. 75) on
August 28, 1990, arguing that the evidence of petitioners' guilt was strong and
thereafter presented its evidence.
On September 21, 1990, respondent Judge required the CIS to produce the bodies of
herein petitioners on October 1, 1990 for arraignment (Annex "O" of the Petition, Rollo,
p. 76). Upon their arraignment, herein Petitioners entered a plea of not guilty and filed
an "Urgent Motion for Hospital Confinement" (Annex "OO" of the Petition Rollo, p. 77)
which was denied by the court in its Order dated October 2, 1990 (Annex "P" of the
Petition, Rollo, p. 80). It likewise ordered their commitment at the Davao City
Rehabilitation Center, Ma-a, Davao City pending trial on the merits. Herein petitioners
argued orally a motion for reconsideration which was opposed by the prosecution. At
the conclusion thereof, the court a quo issued a second order annex "Q" of the
Petition, Rollo, p. 83) denying then motion for reconsideration and as to the alternative
prayer to reopen the motion for hospital confinement, set the continuance thereof to
October 17, 1990. It was further ordered that the petitioners shall remain under the
custody of the PC-CIS pending resolution of the case.
Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical
condition remained erratic. On or about October 18, 1990, herein petitioners were
informed that Brig. Gen. Dumlao had issued a directive for their transfer from the St.
Luke's Hospital to Camp Crame on the basis of the October 2, 1990 Order (Annex "Q"
of the Petition, Rollo, p. 83). Petitioners made representations that the tenor of the
court order warranted maintenance of the status quo, i.e., they were to continue their
hospital confinement. However, Brig, Gen. Dumlao informed them that unless
otherwise restrained by the court, they would proceed with their transfer pursuant to
the order of the trial court.
Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining
Order, effective immediately and continuing until further orders from this Court,
ordering: (a) respondent Hon. William L. Layague to refrain from further proceeding
with petitioners' "Motion for Hospital Confinement" in Criminal Case No. 20595-90
entitled "People of the Philippines v. Leopoldo Veroy and Ma. Luisa Veroy"; and (b)
respondent Brig. Gen. Pantaleon Dumlao to refrain from transferring petitioners from
the St. Luke's Hospital (Rollo, pp. 84-A to 84-C).
On November 2, 1990, respondent Judge issued an order denying petitioners' Motion
for Bail (Annex "A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners
filed a Supplemental Petition on November 7, 1990 (Rollo, P. 105) and a Second
Supplemental Petition on November 16, 1990 (Rollo, p. 120) which sought to review
the order of the trial court dated November 2, 1990 denying their petition for bail.
Acting on the Supplemental Petition filed by Petitioners and taking into consideration
several factors such as: a) that the possibility that they will flee or evade the processes
of the court is fairly remote; b) their poor medical condition; and c) the matters in their
Second Supplemental Petition especially since the prosecution's evidence refers to
constructive possession of the disputed firearms in Davao City through the two (2)
caretakers while petitioners lived in Manila since 1988, this Court, on November 20,
96
1990, granted petitioners' provisional liberty and set the bail bond at P20,000.00 each
(Rollo, p. 141). Petitioners posted a cash bond in the said amount on November 23,
1990 (Rollo, pp. 143-145).
The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents
adopted their Comment dated December 28, 1990 (Rollo, pp. 182-191) as their
Memorandum while, petitioners filed their Memorandum on September 9, 1991 (Rollo,
pp. 218-269).
As submitted by the respondents, and accepted by petitioners, the petition for
mandamus to compel respondent Judge to resolve petitioners' Motion for Bail, and the
petition for certiorari to review the order of respondent judge initially denying their
Motion for Hospital Confinement, were rendered moot and academic by the resolutions
of this Court dated November 20, 1990 and October 25, 1990, respectively. What
remains to be resolved is the petition for prohibition where petitioners raised the
following issues:
1. Presidential Decree No. 1866, or at least the third paragraph of Section 1
thereof, is unconstitutional for being violative of the due process and equal protection
clauses of the Constitution;
2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968;
3. Assuming the validity of Presidential Decree No. 1866 the respondent judge
gravely abused his discretion in admitting in evidence certain articles which were
clearly inadmissible for being violative of the prohibition against unreasonable
searches and seizures.
The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in
the case of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648),
where this Court held that the declaration of unconstitutionality of the third paragraph
of Section 1 of Presidential Decree No. 1866 is wanting in legal basis since it is neither
a bill of attainder nor does it provide a possibility of a double jeopardy.
Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential
Decree No. 1866 is bereft of merit. It is a cardinal rule of statutory construction that
where the words and phrases of a statute are not obscure or ambiguous. its meaning
and the intention of the legislature must be determined from the language employed,
and where there is no ambiguity in the words, there is no room for construction
(Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695,
March 7, 1989 [171 SCRA 1]). A perusal of the aforementioned laws would reveal that
the legislature provided for two (2) distinct offenses: (1) illegal possession of firearms
under Presidential Decree No. 1866; and (2) rebellion, coup d' etat, sedition and
disloyalty under Republic Act 6968; evidently involving different subjects which were
not clearly shown to have eliminated the others.
But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in
general or vague terms. The terms "deal in", "acquire", "dispose" or "possess" are
capable of various interpretations such that there is no definiteness as to whether or
not the definition includes "constructive possession" or how the concept of constructive
possession should be applied. Petitioners were not found in actual possession of the
firearm and ammunitions. They were in Quezon City while the prohibited articles were
found in Davao City. Yet they were being charged under Presidential Decree No. 1866
upon the sole circumstance that the house wherein the items were found belongs to
them (Memorandum for Petitioners, Rollo, pp. 242-244).
Otherwise stated, other than their ownership of the house in Skyline Village, there was
no other evidence whatsoever that herein petitioners possessed or had in their control
the items seized (Ibid., pp. 248-250). Neither was it shown that they had the intention
to possess the Firearms or to further rebellion (Ibid., P. 252).
In a similar case, the revolver in question was found in appellant's store and the
question arouse whether he had possession or custody of it within the meaning of the
law.
This Court held that:
The animus possidendi must be proved in opium cases where the prohibited drug was
found on the premises of the accused and the same rule is applicable to the
possession of firearms. The appellant denied all knowledge of the existence of the
revolver, and the Government's principal witness stated that there were a number of
employees in the store. The only testimony which tends to show that the appellant had
the possession or custody of this revolver is the inference drawn from the fact that it
was found in his store, but we think that this inference is overcome by the positive
testimony of the appellant, when considered with the fact that there were a number of
employees in the store, who, of course, could have placed the revolver in the secret
place where it was found without the knowledge of the appellant. At least there is a
very serious doubt whether he knew of the existence of this revolver. In such case the
doubt must be resolved in favor of the appellant. (U.S. v. Jose and Tan Bo., 34 Phil.
724 [1916])
But more importantly, petitioners question the admissibility in evidence of the articles
seized in violation of their constitutional right against unreasonable search and seizure.
Petitioners aver that while they concede that Capt. Obrero had permission from Ma.
Luisa Veroy to break open the door of their residence, it was merely for the purpose of
ascertaining thereat the presence of the alleged "rebel" soldiers. The permission did
not include any authority to conduct a room to room search once inside the house. The
items taken were, therefore, products of an illegal search, violative of their
constitutional rights As such, they are inadmissible in evidence against them.
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures (Article III,
Section 2 of the 1987 Constitution). However, the rule that searches and seizures must
be supported by a valid warrant is not an absolute one. Among the recognized
exceptions thereto are: (1) a search incidental to an arrest; (2) a search of a moving
vehicle; and (3) seizure of evidence in plain view (People v. Lo Ho Wing, G.R. No.
88017, January 21, 1991 [193 SCRA 122]).
None of these exceptions pertains to the case at bar. The reason for searching the
house of herein petitioners is that it was reportedly being used as a hideout and
recruitment center for rebel soldiers. While Capt. Obrero was able to enter the
compound, he did not enter the house because he did not have a search warrant and
the owners were not present. This shows that he himself recognized the need for a
search warrant, hence, he did not persist in entering the house but rather contacted
the Veroys to seek permission to enter the same. Permission was indeed granted by
97
Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel soldiers.
Under the circumstances it is undeniable that the police officers had ample time to
procure a search warrant but did not.
In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People v.
Aminnudin, G.R. No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro, G.R. No.
L-69401, June 23, 1987 [151 SCRA 279]), warrantless searches were declared illegal
because the officials conducting the search had every opportunity to secure a search
Warrant. The objects seized, being products of illegal searches, were inadmissible in
evidence in the criminal actions subsequently instituted against the accused-appellants
(People v. Cendana, G.R. No. 84715, October 17, 1990 [190 SCRA 538]).
Undeniably, the offense of illegal possession of firearms is malum prohibitum but it
does not follow that the subject thereof is necessarily illegal per se. Motive is
immaterial in mala prohibita but the subjects of this kind of offense may not be
summarily seized simply because they are prohibited. A search warrant is still
necessary. Hence, the rule having been violated and no exception being applicable,
the articles seized were confiscated illegally and are therefore protected by the
exclusionary principle. They cannot be used as evidence against the petitioners in the
criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145
SCRA 689-690 [1986]). Besides, assuming that there was indeed a search warrant,
still in mala prohibita, while there is no need of criminal intent, there must be
knowledge that the same existed. Without the knowledge or voluntariness there is no
crime.
PREMISES CONSIDERED, the petition as granted and the criminal case against the
petitioners for illegal possession of firearms is DISMISSED.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea,
Regalado, Davide, Jr., Romero and Bellosillo, JJ., concur.
G.R. No. 91107 June 19, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
PADILLA, J.:
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt
(hereinafter referred to as the accused) was charged before the Regional Trial Court
(RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for
violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act of 1972, as amended. The factual background of the case is
as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third
time in December 1988 as a tourist. He had visited the country sometime in 1982 and
1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in
the morning of the following day, he took a bus to Sagada and stayed in that place for
two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the
Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From
Baguio City, accused planned to take a late afternoon trip to Angeles City, then
proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989.
From Sagada, accused took a Skyline bus with body number 8005 and Plate number
AVC 902.1
At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen
Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed
at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14,
Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from
the Cordillera Region. The order to establish a checkpoint in the said area was
prompted by persistent reports that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a Caucasian coming from
Sagada had in his possession prohibited drugs.2
The group composed of seven (7) NARCOM officers, in coordination with Tublay
Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the
morning and inspected all vehicles coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped.
Sgt. Fider and CIC Galutan boarded the bus and announced that they were members
of the NARCOM and that they would conduct an inspection. The two (2) NARCOM
officers started their inspection from the front going towards the rear of the bus.
Accused who was the sole foreigner riding the bus was seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the
bulge on accused's waist to be a gun, the officer asked for accused's passport and
other identification papers. When accused failed to comply, the officer required him to
bring out whatever it was that was bulging on his waist. The bulging object turned out
to be a pouch bag and when accused opened the same bag, as ordered, the officer
noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting
98
the officer to open one of the wrapped objects. The wrapped objects turned out to
contain hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he alighted
from the bus, accused stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear
was found in each bag. Feeling the teddy bears, the officer noticed that there were
bulges inside the same which did not feel like foam stuffing. It was only after the
officers had opened the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La
Trinidad, Benguet for further investigation. At the investigation room, the officers
opened the teddy bears and they were found to also contain hashish. Representative
samples were taken from the hashish found among the personal effects of accused
and the same were brought to the PC Crime Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined were hashish. a
prohibited drug which is a derivative of marijuana. Thus, an information was filed
against accused for violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he
raised the issue of illegal search of his personal effects. He also claimed that the
hashish was planted by the NARCOM officers in his pouch bag and that the two (2)
travelling bags were not owned by him, but were merely entrusted to him by an
Australian couple whom he met in Sagada. He further claimed that the Australian
couple intended to take the same bus with him but because there were no more seats
available in said bus, they decided to take the next ride and asked accused to take
charge of the bags, and that they would meet each other at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his passport
and other Identification papers, he handed to one of the officers his pouch bag which
was hanging on his neck containing, among others, his passport, return ticket to
Sweden and other papers. The officer in turn handed it to his companion who brought
the bag outside the bus. When said officer came back, he charged the accused that
there was hashish in the bag. He was told to get off the bus and his picture was taken
with the pouch bag placed around his neck. The trial court did not give credence to
accused's defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was
belied by his failure to raise such defense at the earliest opportunity. When accused
was investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his
lawyer that the hashish was planted by the NARCOM officers in his bag. It was only
two (2) months after said investigation when he told his lawyer about said claim,
denying ownership of the two (2) travelling bags as well as having hashish in his pouch
bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond
reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art. II
of RA 6425, as amended.3 The dispositive portion of the decision reads as follows:
WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of
Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with
subsidiary imprisonment in case of insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics Regional Unit
at Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20,
Article IV of Republic Act 6425, as amended.
SO ORDERED.4
Seeking the reversal of the decision of the trial court finding him guilty of the crime
charged, accused argues that the search of his personal effects was illegal because it
was made without a search warrant and, therefore, the prohibited drugs which were
discovered during the illegal search are not admissible as evidence against him.
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures.5 However,
where the search is made pursuant to a lawful arrest, there is no need to obtain a
search warrant. A lawful arrest without a warrant may be made by a peace officer or a
private person under the following circumstances.6
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs (hashish). A
crime was actually being committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects falls squarely under
paragraph (1) of the foregoing provisions of law, which allow a warrantless search
incident to a lawful arrest.7
While it is true that the NARCOM officers were not armed with a search warrant when
the search was made over the personal effects of accused, however, under the
circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime.
Probable cause has been defined as such facts and circumstances which could lead a
reasonable, discreet and prudent man to believe that an offense has been committed,
and that the objects sought in connection with the offense are in the place sought to be
searched.8 The required probable cause that will justify a warrantless search and
seizure is not determined by any fixed formula but is resolved according to the facts of
each case.9
Warrantless search of the personal effects of an accused has been declared by this
Court as valid, because of existence of probable cause, where the smell of marijuana
99
emanated from a plastic bag owned by the accused,10 or where the accused was
acting suspiciously,11 and attempted to flee.12
Aside from the persistent reports received by the NARCOM that vehicles coming from
Sagada were transporting marijuana and other prohibited drugs, their Commanding
Officer also received information that a Caucasian coming from Sagada on that
particular day had prohibited drugs in his possession. Said information was received
by the Commanding Officer of NARCOM the very same morning that accused came
down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of
herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying
with him prohibited drugs, there was no time to obtain a search warrant. In the
Tangliben case,13 the police authorities conducted a surveillance at the Victory Liner
Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons
engaged in the traffic of dangerous drugs, based on information supplied by some
informers. Accused Tangliben who was acting suspiciously and pointed out by an
informer was apprehended and searched by the police authorities. It was held that
when faced with on-the-spot information, the police officers had to act quickly and
there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a routine
check of the bus (where accused was riding) and the passengers therein, and no
extensive search was initially made. It was only when one of the officers noticed a
bulge on the waist of accused, during the course of the inspection, that accused was
required to present his passport. The failure of accused to present his identification
papers, when ordered to do so, only managed to arouse the suspicion of the officer
that accused was trying to hide his identity. For is it not a regular norm for an innocent
man, who has nothing to hide from the authorities, to readily present his identification
papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession, plus the suspicious failure of the accused to
produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch
bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) travelling bags containing two (2)
teddy bears with hashish stuffed inside them, were prompted by accused's own
attempt to hide his identity by refusing to present his passport, and by the information
received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs
in his possession. To deprive the NARCOM agents of the ability and facility to act
accordingly, including, to search even without warrant, in the light of such
circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of conviction by the trial
court is hereby AFFIRMED. Costs against the accused-appellant. SO ORDERED.
G.R. No. 136860 January 20, 2003
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y VALENCIA, accused.
AGPANGA LIBNAO y KITTEN, accused-appellant.
PUNO, J.:
Before us is an appeal from the Decision dated November 19, 1998 of the Regional
Trial Court, Branch 65, Tarlac City, finding appellant Agpanga Libnao and her co-
accused Rosita Nunga guilty of violating Article II, Section 4 of R.A. No. 6425,
otherwise known as the Dangerous Drugs Act of 1972.1 For their conviction, each was
sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two
million pesos.
Appellant and her co-accused were charged under the following Information:
"That on or about October 20, 1996 at around 1:00 oclock dawn, in the Municipality of
Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and helping with one
another, without being lawfully authorized, did then and there willfully, unlawfully and
feloniously make delivery/transport with intent to sell marijuana leaves wrapped in a
transparent plastic weighing approximately eight (8) kilos, which is in violation of
Section 4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972,
as amended.
CONTRARY TO LAW."2
During their arraignment, both entered a plea of Not Guilty. Trial on the merits ensued.
It appears from the evidence adduced by the prosecution that in August of 1996,
intelligence operatives of the Philippine National Police (PNP) stationed in Tarlac,
Tarlac began conducting surveillance operation on suspected drug dealers in the area.
They learned from their asset that a certain woman from Tajiri, Tarlac and a companion
from Baguio City were transporting illegal drugs once a month in big bulks.
On October 19, 1996, at about 10 oclock in the evening, Chief Inspector Benjamin
Arceo, Tarlac Police Chief, held a briefing in connection with a tip which his office
received that the two drug pushers, riding in a tricycle, would be making a delivery that
night. An hour later, the Police Alert Team installed a checkpoint in Barangay
Salapungan to apprehend the suspects. Witness SPO1 Marlon Gamotea, PO3
Florante Ferrer and SPO3 Roberto Aquino were assigned to man the checkpoint.
At about 1:00 oclock in the morning of the following day, SPO1 Gamotea and PO3
Ferrer flagged down a passing tricycle. It had two female passengers seated inside,
who were later identified as the appellant Agpanga Libnao and her co-accused Rosita
Nunga.3 In front of them was a black bag. Suspicious of the black bag and the twos
uneasy behavior when asked about its ownership and content, the officers invited
them to Kabayan Center No.2 located at the same barangay. They brought with them
the black bag.
Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to
witness the opening of the black bag. In the meantime, the two women and the bag
were turned over to the investigator on duty, SPO3 Arthur Antonio. As soon as the
100
barangay captain arrived, the black bag was opened in the presence of the appellant,
her co-accused and personnel of the center. Found inside it were eight bricks of leaves
sealed in plastic bags and covered with newspaper. The leaves were suspected to be
marijuana.
To determine who owns the bag and its contents, SPO3 Antonio interrogated the two.
Rosita Nunga stated that it was owned by the appellant. The latter, in turn, disputed
this allegation. Thereafter, they were made to sign a confiscation receipt without the
assistance of any counsel, as they were not informed of their right to have one. During
the course of the investigation, not even close relatives of theirs were present.
The seized articles were later brought to the PNP Crime Laboratory in San Fernando,
Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babu conducted a
laboratory examination on them. She concluded that the articles were marijuana
leaves weighing eight kilos.4
For their part, both accused denied the accusation against them. Rosita Nunga
testified that in the evening of October 19,1996, she went to buy medicine for her ailing
child at a pharmacy near the Tarlac Provincial Hospital. The child was suffering from
diarrhea, occasioned by abdominal pain. To return to their house, she boarded a
tricycle bound for Barangay Tariji, where she resides. Along the way, the tricycle she
was riding was flagged down by a policeman at a checkpoint in Barangay Salapungan.
She was taken aback when the officer invited her to the Kabayan Center. It was there
that she was confronted with the black bag allegedly containing eight bricks of
marijuana leaves. She disputed owning the bag and knowing its contents. She also
denied sitting beside the appellant in the passengers seat inside the tricycle, although
she admitted noticing a male passenger behind the driver.
Remarkably, appellant did not appear in court and was only represented by her lawyer.
The latter marked and submitted in evidence an affidavit executed by one Efren
Gannod, a security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn
statement declared that at about 0220H on October 20, 1996, SPO2 Antonio arrived at
their terminal and arrested a certain woman who boarded their Bus No. 983. The
incident was recorded in the companys logbook. Gannod, however, was not presented
in court to attest that the woman referred in his affidavit was the appellant.
After trial, the court convicted appellant and her co-accused Rosita Nunga, thus:
"WHEREFORE, finding both accused guilty beyond reasonable doubt of the offense of
violation of Article II, Section 4 of RA 6425 in relation to RA 7659, they are hereby
sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two
million pesos.
SO ORDERED."5
Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she
assigned the following errors:
"1. The Honorable Regional Trial Court failed to appreciate the contention of the
defense that the right of accused against illegal and unwarranted arrest and search
was violated by the police officers who arrested both accused.
2. The Honorable Court failed to appreciate the contention of the defense that the right
of the accused to custodial investigation was deliberately violated by the peace officers
who apprehended and investigated the accused.
3. The Honorable Court miserably failed to evaluate the material inconsistencies in the
testimonies of the prosecutions witnesses which inconsistencies cast doubt and make
incredible the contention and version of the prosecution.
4. The Honorable Court gravely abused its discretion when it appreciated and
considered the documentary and object evidence of the prosecution not formally
offered amounting to ignorance of the law."6
We are not persuaded by these contentions; hence, the appeal must be dismissed.
In arguing that her arrest was unlawful, appellant capitalizes on the absence of a
warrant for her arrest. She contends that at the time she was apprehended by the
police officers, she was not committing any offense but was merely riding a tricycle. In
the same manner, she impugns the search made on her belongings as illegal as it was
done without a valid warrant or under circumstances when warrantless search is
permissible. Consequently, any evidence obtained therein is inadmissible against her.
These arguments fail to impress. The general rule is that a search may be conducted
by law enforcers only on the strength of a search warrant validly issued by a judge as
provided in Article III, Section 2 of the 1987 Constitution, thus:
"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 and 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."7
The constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against "unreasonable" searches and seizures. Searches
and seizures are as a rule unreasonable unless authorized by a validly issued search
warrant or warrant of arrest. Thus, the fundamental protection accorded by the search
and seizure clause is that between persons and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants
and warrants of arrest.8
Be that as it may, the requirement that a judicial warrant must be obtained prior to the
carrying out of a search and seizure is not absolute. There are certain familiar
exceptions to the rule, one of which relates to search of moving vehicles.9 Warrantless
search and seizure of moving vehicles are allowed in recognition of the impracticability
of securing a warrant under said circumstances as the vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant may be sought.10 Peace officers
in such cases, however, are limited to routine checks where the examination of the
vehicle is limited to visual inspection.11 When a vehicle is stopped and subjected to an
extensive search, such would be constitutionally permissible only if the officers made it
upon probable cause, i.e., upon a belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or other vehicle contains as item,
article or object which by law is subject to seizure and destruction.12
101
In earlier decisions, we held that there was probable cause in the following instances:
(a) where the distinctive odor of marijuana emanated from the plastic bag carried by
the accused;13 (b) where an informer positively identified the accused who was
observed to be acting suspiciously;14 (c) where the accused who were riding a
jeepney were stopped and searched by policemen who had earlier received
confidential reports that said accused would transport a quantity of marijuana;15 (d)
where Narcom agents had received information that a Caucasian coming from
Sagada, Mountain Province had in his possession prohibited drugs and when the
Narcom agents confronted the accused Caucasian because of a conspicuous bulge in
his waistline, he failed to present his passport and other identification papers when
requested to do so;16 (f) where the moving vehicle was stopped and searched on the
basis of intelligence information and clandestine reports by a deep penetration agent
or spy -- one who participated in the drug smuggling activities of the syndicate to which
the accused belong -- that said accused were bringing prohibited drugs into the
country;17 (g) where the arresting officers had received a confidential information that
the accused, whose identity as a drug distributor was established in a previous test-
buy operation, would be boarding MV Dona Virginia and probably carrying shabu with
him;18 (h) where police officers received an information that the accused, who was
carrying a suspicious-looking gray luggage bag, would transport marijuana in a bag to
Manila;19 and (i) where the appearance of the accused and the color of the bag he
was carrying fitted the description given by a civilian asset.20
The warrantless search in the case at bench is not bereft of a probable cause. The
Tarlac Police Intelligence Division had been conducting surveillance operation for three
months in the area. The surveillance yielded the information that once a month,
appellant and her co-accused Rosita Nunga transport drugs in big bulks. At 10:00 pm
of October 19, 1996, the police received a tip that the two will be transporting drugs
that night riding a tricycle. Surely, the two were intercepted three hours later, riding a
tricycle and carrying a suspicious-looking black bag, which possibly contained the
drugs in bulk. When they were asked who owned it and what its content was, both
became uneasy. Under these circumstances, the warrantless search and seizure of
appellants bag was not illegal.
It is also clear that at the time she was apprehended, she was committing a criminal
offense. She was making a delivery or transporting prohibited drugs in violation of
Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of the instances a
police officer is permitted to carry out a warrantless arrest is when the person to be
arrested is caught committing a crime in flagrante delicto, thus:
"Section 5. Arrest without Warrant; when lawful. - A peace officer or a private person
may, without warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
x x x."21 (emphasis supplied)
Appellant also takes issue of the fact that she was not assisted by a lawyer when
police officers interrogated her. She claimed that she was not duly informed of her right
to remain silent and to have competent counsel of her choice. Hence, she argues that
the confession or admission obtained therein should be considered inadmissible in
evidence against her.
These contentions deserve scant attention. Appellant did not make any confession
during her custodial investigation. In determining the guilt of the appellant and her co-
accused, the trial court based its decision on the testimonies of prosecution witnesses
and on the existence of the confiscated marijuana. We quote the relevant portion of its
decision:
"Earlier in the course of the proceedings, the court then presided by Judge Angel
Parazo, granted bail to accused Agpanga Libnao, ruling that the confiscation receipt
signed by both accused (Exhibit "C") is inadmissible because they were not assisted
by a counsel. Confronted with this same issue, this court finds the postulate to rest on
good authority and will therefore reiterate its inadmissibility.
Since the prosecution had not presented any extrajudicial confession extracted from
both accused as evidence of their guilt, the court finds it needless to discuss any
answer given by both accused as a result of the police interrogation while in their
custody. By force of necessity, therefore, the only issue to be resolved by the court is
whether or not, based on the prosecutions evidence, both accused can be
convicted."22 (emphasis supplied)
Appellant then faults the trial court for appreciating and taking into account the object
and documentary evidence of the prosecution despite the latters failure to formally
offer them. Absent any formal offer, she argues that they again must be deemed
inadmissible.
The contention is untenable. Evidence not formally offered can be considered by the
court as long as they have been properly identified by testimony duly recorded and
they have themselves been incorporated in the records of the case.23 All the
documentary and object evidence in this case were properly identified, presented and
marked as exhibits in court, including the bricks of marijuana.24 Even without their
formal offer, therefore, the prosecution can still establish the case because witnesses
properly identified those exhibits, and their testimonies are recorded.25 Furthermore,
appellants counsel had cross-examined the prosecution witnesses who testified on
the exhibits.26
Appellant also assails the credibility of the testimonies of the prosecution witnesses.
She first cites the inconsistency between the testimony of SPO1 Marlon Gamotea, who
said that it was SPO2 Antonio who opened the black bag containing the marijuana;
and that of SPO2 Antonio, who declared that the bag was already open when he
arrived at the Kabayan Center. She then focuses on the police officers failure to
remember the family name of the driver of the tricycle where she allegedly rode,
claiming that this is improbable and contrary to human experience.
Again, appellants arguments lack merit. The alleged inconsistencies she mentions
refer only to minor details and not to material points regarding the basic elements of
the crime. They are inconsequential that they do not affect the credibility of the
witnesses nor detract from the established fact that appellant and her co-accused were
102
transporting marijuana. Testimonies of witnesses need only corroborate each other on
important and relevant details concerning the principal occurrence.27 The identity of
the person who opened the bag is clearly immaterial to the guilt of the appellant.
Besides, it is to be expected that the testimony of witnesses regarding the same
incident may be inconsistent in some aspects because different persons may have
different recollections of the same incident.28
Likewise, we find nothing improbable in the failure of the police officers to note and
remember the name of the tricycle driver for the reason that it was unnecessary for
them to do so. It was not shown that the driver was in complicity with the appellant and
her co-accused in the commission of the crime.
To be sure, credence was properly accorded to the testimonies of prosecution
witnesses, who are law enforcers. When police officers have no motive to testify
falsely against the accused, courts are inclined to uphold this presumption.29 In this
case, no evidence has been presented to suggest any improper motive on the part of
the police enforcers in arresting the appellant.
Against the credible positive testimonies of the prosecution witnesses, appellants
defense of denial and alibi cannot stand. The defense of denial and alibi has been
invariably viewed by the courts with disfavor for it can just as easily be concocted and
is a common and standard defense ploy in most cases involving violation of the
Dangerous Drugs Act.30 It has to be substantiated by clear and convincing evidence.
31 The sole proof presented in the lower court by the appellant to support her claim of
denial and alibi was a sworn statement, which was not even affirmed on the witness
stand by the affiant. Hence, we reject her defense.
IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court
finding appellant guilty beyond reasonable doubt of the offense of violation of Article II,
Section 4 of R.A. No. 6425 in relation to R.A. No. 7659, and sentencing her to an
imprisonment of reclusion perpetua and to pay a fine of two million pesos is hereby
AFFIRMED.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.
[G.R. No. 121917. March 12, 1997]
ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF
APPEALS and PEOPLE of the PHILIPPINES, respondents.
DECISION
FRANCISCO, J.:
On October 26, 1992, high-powered firearms with live ammunitions were found in the
possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:
"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live
ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short
magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and
"(4) Six additional live double action ammunitions of .38 caliber revolver."[1]
Petitioner was correspondingly charged on December 3, 1992, before the Regional
Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions
under P.D. 1866[2] thru the following Information:[3]
"That on or about the 26th day of October, 1992, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have in his possession and under his
custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long
and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith
and Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta,
SN-A35723Y with clip and eight (8) ammunitions, without having the necessary
authority and permit to carry and possess the same.
ALL CONTRARY TO LAW."[4]
The lower court then ordered the arrest of petitioner,[5] but granted his application for
bail.[6] During the arraignment on January 20, 1993, a plea of not guilty was entered
for petitioner after he refused,[7] upon advice of counsel,[8] to make any plea.[9]
Petitioner waived in writing his right to be present in any and all stages of the case.[10]
After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25,
1994 convicting petitioner of the crime charged and sentenced him to an
"indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as
minimum, to 21 years of reclusion perpetua, as maximum".[11] Petitioner filed his
notice of appeal on April 28, 1994.[12] Pending the appeal in the respondent Court of
Appeals,[13] the Solicitor-General, convinced that the conviction shows strong
evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond.
The resolution of this motion was incorporated in the now assailed respondent court's
decision sustaining petitioner's conviction,[14] the dispositive portion of which reads:
"WHEREFORE, the foregoing circumstances considered, the appealed decision is
hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accused-
appellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2)
6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is
directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal
to the National Bureau of Prisons thru the Philippine National Police where the said
103
accused-appellant shall remain under confinement pending resolution of his appeal,
should he appeal to the Supreme Court. This shall be immediately executory. The
Regional Trial Court is further directed to submit a report of compliance herewith.
SO ORDERED."[15]
Petitioner received a copy of this decision on July 26, 1995.[16] On August 9, 1995 he
filed a "motion for reconsideration (and to recall the warrant of arrest)"[17] but the
same was denied by respondent court in its September 20, 1995 Resolution,[18] copy
of which was received by petitioner on September 27, 1995. The next day, September
28, petitioner filed the instant petition for review on certiorari with application for
bail[19] followed by two "supplemental petitions" filed by different counsels,[20] a
"second supplemental petition"[21] and an urgent motion for the separate resolution of
his application for bail. Again, the Solicitor-General[22] sought the denial of the
application for bail, to which the Court agreed in a Resolution promulgated on July 31,
1996.[23] The Court also granted the Solicitor-General's motion to file a consolidated
comment on the petitions and thereafter required the petitioner to file his reply.[24]
However, after his vigorous resistance and success on the intramural of bail (both in
the respondent court and this Court) and thorough exposition of petitioner's guilt in his
55-page Brief in the respondent court, the Solicitor-General now makes a complete
turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's
acquittal.[25]
The People's detailed narration of facts, well-supported by evidence on record and
given credence by respondent court, is as follows:[26]
"At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his
compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto.
Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN,
February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along
McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a
Mitsubishi Pajero, running fast down the highway prompting him to remark that the
vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the
local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente
ya.' (p. 7, ibid). True enough, immediately after the vehicle had passed the restaurant,
Manarang and Perez heard a screeching sound produced by the sudden and hard
braking of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of
the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what had
happened, remarked 'oy ta na' signifying that Manarang had been right in his
observation (pp. 8-9, ibid).
"Manarang and Cruz went out to investigate and immediately saw the vehicle
occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10,
ibid). Manarang, being a member of both the Spectrum, a civic group and the
Barangay Disaster Coordinating Council, decided to report the incident to the
Philippine National Police of Angeles City (p. 10, ibid). He took out his radio and called
the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10,
ibid). By the time Manarang completed the call, the vehicle had started to leave the
place of the accident taking the general direction to the north (p. 11, ibid).
"Manarang went to the location of the accident and found out that the vehicle had hit
somebody (p. 11, ibid).
"He asked Cruz to look after the victim while he went back to the restaurant, rode on
his motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to
make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15,
1993). He called the Viper through the radio once again (p. 34, ibid) reporting that a
vehicle heading north with plate number PMA 777 was involved in a hit and run
accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan,
upon receipt of the second radio call flashed the message to all units of PNP Angeles
City with the order to apprehend the vehicle (p. 20, ibid). One of the units of the PNP
Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street
near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and
SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and
positioned themselves near the south approach of Abacan bridge since it was the only
passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to
cover the distance between their office and the Abacan bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to the flash message from SPO2
Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting
patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO
Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado
immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the
vehicle with plate number PMA 777 (p. 10, ibid).
"In the meantime, Manarang continued to chase the vehicle which figured in the hit
and run incident, even passing through a flooded portion of the MacArthur Highway
two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with
the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was
chasing went towards Magalang, he proceeded to Abacan bridge because he knew
Pulongmaragal was not passable (pp. 12-14, ibid). When he reached the Abacan
bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all
vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and
informed them that there was a hit and run incident (p. 10, ibid). Upon learning that the
two police officers already knew about the incident, Manarang went back to where he
came from (pp. 10-11; ibid). When Manarang was in front of Tina's Restaurant, he saw
the vehicle that had figured in the hit and run incident emerging from the corner
adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license
plate hanging in front of the vehicle bore the identifying number PMA 777 and he
followed it (p. 15, ibid) towards the Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3
(p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away
from their position, the two police officers boarded their Mobile car, switched on the
engine, operated the siren and strobe light and drove out to intercept the vehicle (p.
11, ibid). They cut into the path of the vehicle forcing it to stop (p. 11, ibid).
"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23,
1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed
its driver to alight (p. 12, ibid). The driver rolled down the window and put his head out
while raising both his hands. They recognized the driver as Robin C. Padilla, appellant
in this case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At
that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind
the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which
appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8,
104
1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked
on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its butt
protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but appellant
held the former's hand alleging that the gun was covered by legal papers (p. 16, ibid).
SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it
would have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2
Borja told him about the hit and run incident which was angrily denied by appellant (p.
17, ibid). By that time, a crowd had formed at the place (p. 19, ibid). SPO2 Borja
checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben
Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8,
1993). As the most senior police officer in the group, SPO Mercado took over the
matter and informed appellant that he was being arrested for the hit and run incident
(p. 13, ibid). He pointed out to appellant the fact that the plate number of his vehicle
was dangling and the railing and the hood were dented (p. 12, ibid). Appellant,
however, arrogantly denied his misdeed and, instead, played with the crowd by holding
their hands with one hand and pointing to SPO3 Borja with his right hand saying 'iyan,
kinuha ang baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture
exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p.
16, ibid). SPO Mercado saw this and so when appellant turned around as he was
talking and proceeding to his vehicle, Mercado confiscated the magazine from
appellant (pp. 16-17, ibid). Suspecting that appellant could also be carrying a rifle
inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from
going back to his vehicle by opening himself the door of appellant's vehicle (16-17,
ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the
driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode
(pp. 17-21, ibid). He asked appellant for the papers covering the rifle and appellant
answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified
the arrest of appellant by including as its ground illegal possession of firearms (p. 28,
ibid). SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic Division at Jake Gonzales
Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a
pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp.
33-35, ibid) loaded with seven (7) other live bullets. Appellant also voluntarily
surrendered a black bag containing two additional long magazines and one short
magazine (Exhibits M, N, and O, pp. 36-37, ibid). After appellant had been interrogated
by the Chief of the Traffic Division, he was transferred to the Police Investigation
Division at Sto. Rosario Street beside the City Hall Building where he and the firearms
and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July
13, 1993). During the investigation, appellant admitted possession of the firearms
stating that he used them for shooting (p. 14, ibid). He was not able to produce any
permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN,
January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior
Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives
Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms
confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber
revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not
registered in the name of Robin C. Padilla (p. 6, ibid). A second Certification dated
December 11, 1992 issued by Captain Espino stated that the three firearms were not
also registered in the name of Robinhood C. Padilla (p. 10, ibid)."
Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently,
the firearms and ammunitions taken in the course thereof are inadmissible in evidence
under the exclusionary rule; (2) that he is a confidential agent authorized, under a
Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that
the penalty for simple illegal possession constitutes excessive and cruel punishment
proscribed by the 1987 Constitution.
After a careful review of the records[27]of this case, the Court is convinced that
petitioner's guilt of the crime charged stands on terra firma, notwithstanding the
Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest. There is no
dispute that no warrant was issued for the arrest of petitioner, but that per se did not
make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances:[28]
"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it.
(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.
Paragraph (a) requires that the person be arrested (i) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (ii) in the
presence of the arresting officer or private person.[29] Both elements concurred here,
as it has been established that petitioner's vehicle figured in a hit and run - an offense
committed in the "presence" of Manarang, a private person, who then sought to arrest
petitioner. It must be stressed at this point that "presence" does not only require that
the arresting person sees the offense, but also when he "hears the disturbance
created thereby AND proceeds at once to the scene."[30] As testified to by Manarang,
he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut
vendor), reported the incident to the police and thereafter gave chase to the erring
Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a
radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge
where he found responding policemen SPO2 Borja and SPO2 Miranda already
positioned near the bridge who effected the actual arrest of petitioner.[31]
Petitioner would nonetheless insist on the illegality of his arrest by arguing that the
policemen who actually arrested him were not at the scene of the hit and run.[32] We
beg to disagree. That Manarang decided to seek the aid of the policemen (who
admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's
arrest, did not in any way affect the propriety of the apprehension. It was in fact the
105
most prudent action Manarang could have taken rather than collaring petitioner by
himself, inasmuch as policemen are unquestionably better trained and well-equipped
in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could
have put up a degree of resistance which an untrained civilian may not be able to
contain without endangering his own life. Moreover, it is a reality that curbing
lawlessness gains more success when law enforcers function in collaboration with
private citizens. It is precisely through this cooperation, that the offense herein involved
fortunately did not become an additional entry to the long list of unreported and
unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot
defeat the arrest which has been set in motion in a public place for want of a warrant
as the police was confronted by an urgent need to render aid or take action.[33] The
exigent circumstances of - hot pursuit,[34] a fleeing suspect, a moving vehicle, the
public place and the raining nighttime - all created a situation in which speed is
essential and delay improvident.[35] The Court acknowledges police authority to make
the forcible stop since they had more than mere "reasonable and articulable" suspicion
that the occupant of the vehicle has been engaged in criminal activity.[36] Moreover,
when caught in flagrante delicto with possession of an unlicensed firearm (Smith &
Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper
as he was again actually committing another offense (illegal possession of firearm and
ammunitions) and this time in the presence of a peace officer.[37]
Besides, the policemen's warrantless arrest of petitioner could likewise be justified
under paragraph (b) as he had in fact just committed an offense. There was no
supervening event or a considerable lapse of time between the hit and run and the
actual apprehension. Moreover, after having stationed themselves at the Abacan
bridge in response to Manarang's report, the policemen saw for themselves the fast
approaching Pajero of petitioner,[38] its dangling plate number (PMA 777 as reported
by Manarang), and the dented hood and railings thereof.[39] These formed part of the
arresting police officer's personal knowledge of the facts indicating that petitioner's
Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the
arresting police officers acted upon verified personal knowledge and not on unreliable
hearsay information.[40]
Furthermore, in accordance with settled jurisprudence, any objection, defect or
irregularity attending an arrest must be made before the accused enters his plea.[41]
Petitioner's belated challenge thereto aside from his failure to quash the information,
his participation in the trial and by presenting his evidence, placed him in estoppel to
assail the legality of his arrest.[42] Likewise, by applying for bail, petitioner patently
waived such irregularities and defects.[43]
We now go to the firearms and ammunitions seized from petitioner without a search
warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of property
is valid,[44] are as follows:
1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule
126 of the Rules of Court[45] and by prevailing jurisprudence[46],
2. Seizure of evidence in "plain view", the elements of which are:[47]
(a). a prior valid intrusion based on the valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;
(b). the evidence was inadvertently discovered by the police who had the right to be
where they are;
(c). the evidence must be immediately apparent, and
(d). "plain view" justified mere seizure of evidence without further search.[48]
3. search of a moving vehicle.[49] Highly regulated by the government, the vehicle's
inherent mobility reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to probable cause
that the occupant committed a criminal activity.[50]
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears that the
authorities stumbled upon petitioner's firearms and ammunitions without even
undertaking any active search which, as it is commonly understood, is a prying into
hidden places for that which is concealed.[51] The seizure of the Smith & Wesson
revolver and an M-16 rifle magazine was justified for they came within "plain view" of
the policemen who inadvertently discovered the revolver and magazine tucked in
petitioner's waist and back pocket respectively, when he raised his hands after
alighting from his Pajero. The same justification applies to the confiscation of the M-16
armalite rifle which was immediately apparent to the policemen as they took a casual
glance at the Pajero and saw said rifle lying horizontally near the driver's seat.[52]
Thus it has been held that:
"(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . .
police officers should happen to discover a criminal offense being committed by any
person, they are not precluded from performing their duties as police officers for the
apprehension of the guilty person and the taking of the corpus delicti."[53]
"Objects whose possession are prohibited by law inadvertently found in plain view are
subject to seizure even without a warrant."[54]
With respect to the Berreta pistol and a black bag containing assorted magazines,
petitioner voluntarily surrendered them to the police.[55] This latter gesture of
petitioner indicated a waiver of his right against the alleged search and seizure[56],
and that his failure to quash the information estopped him from assailing any purported
defect.[57]
Even assuming that the firearms and ammunitions were products of an active search
done by the authorities on the person and vehicle of petitioner, their seizure without a
search warrant nonetheless can still be justified under a search incidental to a lawful
arrest (first instance). Once the lawful arrest was effected, the police may undertake a
protective search[58] of the passenger compartment and containers in the vehicle[59]
which are within petitioner's grabbing distance regardless of the nature of the offense.
[60] This satisfied the two-tiered test of an incidental search: (i) the item to be
searched (vehicle) was within the arrestee's custody or area of immediate control[61]
and (ii) the search was contemporaneous with the arrest.[62] The products of that
search are admissible evidence not excluded by the exclusionary rule. Another
106
justification is a search of a moving vehicle (third instance). In connection therewith, a
warrantless search is constitutionally permissible when, as in this case, the officers
conducting the search have reasonable or probable cause to believe, before the
search, that either the motorist is a law-offender (like herein petitioner with respect to
the hit and run) or the contents or cargo of the vehicle are or have been instruments or
the subject matter or the proceeds of some criminal offense.[63]
Anent his second defense, petitioner contends that he could not be convicted of
violating P.D. 1866 because he is an appointed civilian agent authorized to possess
and carry the subject firearms and ammunition as evidenced by a Mission Order[64]
and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy
commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must be established,
viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who
owned or possessed the firearm does not have the corresponding license or permit to
possess.[65] The first element is beyond dispute as the subject firearms and
ammunitions[66] were seized from petitioner's possession via a valid warrantless
search, identified and offered in evidence during trial. As to the second element, the
same was convincingly proven by the prosecution. Indeed, petitioner's purported
Mission Order and Memorandum Receipt are inferior in the face of the more
formidable evidence for the prosecution as our meticulous review of the records
reveals that the Mission Order and Memorandum Receipt were mere afterthoughts
contrived and issued under suspicious circumstances. On this score, we lift from
respondent court's incisive observation. Thus:
"Appellant's contention is predicated on the assumption that the Memorandum
Receipts and Mission Order were issued before the subject firearms were seized and
confiscated from him by the police officers in Angeles City. That is not so. The
evidence adduced indicate that the Memorandum Receipts and Mission Order were
prepared and executed long after appellant had been apprehended on October 26,
1992.
"Appellant, when apprehended, could not show any document as proof of his authority
to possess and carry the subject firearms. During the preliminary investigation of the
charge against him for illegal possession of firearms and ammunitions he could not,
despite the ample time given him, present any proper document showing his authority.
If he had, in actuality, the Memorandum Receipts and Missions Order, he could have
produced those documents easily, if not at the time of apprehension, at least during
the preliminary investigation. But neither appellant nor his counsel inform the
prosecutor that appellant is authorized to possess and carry the subject firearms under
Memorandum Receipt and Mission Order. At the initial presentation of his evidence in
court, appellant could have produced these documents to belie the charged against
him. Appellant did not. He did not even take the witness stand to explain his
possession of the subject firearms.
"Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no
allegation of a Memorandum Receipts and Mission Order authorizing appellant to
possess and carry the subject firearms.
"At the initial presentation of appellant's evidence, the witness cited was one James
Neneng to whom a subpoena was issued. Superintendent Gumtang was not even
mentioned. James Neneng appeared in court but was not presented by the defense.
Subsequent hearings were reset until the defense found Superintendent Gumtang who
appeared in court without subpoena on January 13, 1994."[67]
The Court is baffled why petitioner failed to produce and present the Mission Order
and Memorandum Receipt if they were really issued and existing before his
apprehension. Petitioner's alternative excuses that the subject firearms were intended
for theatrical purposes, or that they were owned by the Presidential Security Group, or
that his Mission Order and Memorandum Receipt were left at home, further compound
their irregularity. As to be reasonably expected, an accused claiming innocence, like
herein petitioner, would grab the earliest opportunity to present the Mission Order and
Memorandum Receipt in question and save himself from the long and agonizing public
trial and spare him from proffering inconsistent excuses. In fact, the Mission Order
itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing
that:
"VIII. c. When a Mission Order is requested for verification by enforcement units/
personnels such as PNP, Military Brigade and other Military Police Units of AFP, the
Mission Order should be shown without resentment to avoid embarrassment and/or
misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will
be carried out through all legal means and do not cover an actuation in violation of
laws. In the latter event, this Mission Order is rendered inoperative in respect to such
violation."[68]
which directive petitioner failed to heed without cogent explanation.
The authenticity and validity of the Mission Order and Memorandum Receipt,
moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes
denied under oath his signature on the dorsal side of the Mission Order and declared
further that he did not authorize anyone to sign in his behalf.[69] His surname thereon,
we note, was glaringly misspelled as "Durembes."[70] In addition, only Unit
Commanders and Chief of Offices have the authority to issue Mission Orders and
Memorandum Receipts under the Guidelines on the Issuance of MOs, MRs, &
PCFORs.[71] PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and
Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere
deputy commander. Having emanated from an unauthorized source, petitioner's
Mission Order and Memorandum Receipt are infirm and lacking in force and effect.
Besides, the Mission Order covers "Recom 1-12-Baguio City,"[72] areas outside Supt.
Gumtang's area of responsibility thereby needing prior approval "by next higher
Headquarters"[73] which is absent in this case. The Memorandum Receipt is also
unsupported by a certification as required by the March 5, 1988 Memorandum of the
Secretary of Defense which pertinently provides that:
"No memorandum receipt shall be issued for a CCS firearms without corresponding
certification from the corresponding Responsible Supply Officer of the appropriate AFP
unit that such firearm has been officially taken up in that units property book, and that
report of such action has been reported to higher AFP authority."
Had petitioner's Memorandum Receipt been authentic, we see no reason why he
cannot present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the Director for
Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel
107
or in the list of Civilian Agents or Employees of the PNP which could justify the
issuance of a Mission Order, a fact admitted by petitioner's counsel.[74] The
implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General
Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:
"No Mission Order shall be issued to any civilian agent authorizing the same to carry
firearms outside residence unless he/she is included in the regular plantilla of the
government agency involved in law enforcement and is receiving regular
compensation for the services he/she is rendering in the agency. Further, the civilian
agent must be included in a specific law enforcement/police/intelligence project
proposal or special project which specifically required the use of firearms(s) to insure
its accomplishment and that the project is duly approved at the PC Regional
Command level or its equivalent level in other major services of the AFP, INP and NBI,
or at higher levels of command."[75]
Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides
as follows:
"If mission orders are issued to civilians (not members of the uniformed service), they
must be civilian agents included in the regular plantilla of the government agency
involved in law enforcement and are receiving regular compensation for the service
they are rendering."
That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of
evidence is accentuated all the more by the testimony and certification of the Chief of
the Records Branch of the firearms and Explosives Office of the PNP declaring that
petitioner's confiscated firearms are not licensed or registered in the name of the
petitioner.[76] Thus:
"Q. In all these files that you have just mentioned Mr. Witness, what did you find, if
any?
"A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm
pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being
asked whether it is registered or not, I did not find any records, the M-16 and the
caliber .357 and the caliber .380 but there is a firearm with the same serial number
which is the same as that licensed and/or registered in the name of one Albert
Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a
pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this case are not listed in the names of
the accused in this case?
"A. Yes, sir.[77]
xxx xxx xxx
And the certification which provides as follows:
Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
"PNPFEO5 28 November 1992
"C E R T I F I C A T I O N
"TO WHOM IT MAY CONCERN:
"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/
registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214
covered by License No. RL M76C4476687.
"Further certify that the following firearms are not registered with this Office per
verification from available records on file this Office as of this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
"However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y,
licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol
Pasig, MM under Re-Registered License.
"This certification is issued pursuant to Subpoena from City of Angeles.
"FOR THE CHIEF, FEO:
(Sgd.)
JOSE MARIO M. ESPINO
Sr. Inspector, PNP
Chief, Records Branch" [78]
In several occasions, the Court has ruled that either the testimony of a representative
of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that
a person is not a licensee of any firearm would suffice to prove beyond reasonable
doubt the second element of illegal possession of firearm.[79] In People vs. Tobias,[80]
we reiterated that such certification is sufficient to show that a person has in fact no
license. From the foregoing discussion, the fact that petitioner does not have the
license or permit to possess was overwhelmingly proven by the prosecution. The
certification may even be dispensed with in the light of the evidence[81] that an M-16
rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated
firearms, cannot be licensed to a civilian,[82] as in the case of petitioner. The Court,
therefore, entertains no doubt in affirming petitioner's conviction especially as we find
no plausible reason, and none was presented, to depart from the factual findings of
both the trial court and respondent court which, as a rule, are accorded by the Court
with respect and finality.[83]
Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a
democratic ambience (sic) and a non-subversive context" and adds that respondent
court should have applied instead the previous laws on illegal possession of firearms
since the reason for the penalty imposed under P.D. 1866 no longer exists.[84] He
108
stresses that the penalty of 17 years and 4 months to 21 years for simple illegal
possession of firearm is cruel and excessive in contravention of the Constitution.[85]
The contentions do not merit serious consideration. The trial court and the respondent
court are bound to apply the governing law at the time of appellant's commission of the
offense for it is a rule that laws are repealed only by subsequent ones.[86] Indeed, it is
the duty of judicial officers to respect and apply the law as it stands.[87] And until its
repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the
previous statutes adverted to by petitioner.
"In the case at bar, no mitigating or aggravating circumstances have been alleged or
proved, In accordance with the doctrine regarding special laws explained in People v.
Simon,[94] although Presidential Decree No. 1866 is a special law, the penalties
therein were taken from the Revised Penal Code, hence the rules in said Code for
graduating by degrees or determining the proper period should be applied.
Consequently, the penalty for the offense of simple illegal possession of firearm is the
medium period of the complex penalty in said Section 1, that is, 18 years, 8 months
and 1 day to 20 years.

Equally lacking in merit is appellant's allegation that the penalty for simple illegal
possession is unconstitutional. The penalty for simple possession of firearm, it should
be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary
to appellant's erroneous averment. The severity of a penalty does not ipso facto make
the same cruel and excessive.
"This penalty, being that which is to be actually imposed in accordance with the rules
therefor and not merely imposable as a general prescription under the law, shall be the
maximum of the range of the indeterminate sentence. The minimum thereof shall be
taken, as aforesaid, from any period of the penalty next lower in degree, which is,
prision mayor in its maximum period to reclusion temporal in its medium period.[95]

"It takes more than merely being harsh, excessive, out of proportion, or severe for a WHEREFORE, premises considered, the decision of the Court of Appeals sustaining
penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized petitioner's conviction by the lower court of the crime of simple illegal possession of
by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate
Expressed in other terms, it has been held that to come under the ban, the punishment penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18)
must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the nature of the years, eight (8) months and one (1) day, as maximum.
offense as to shock the moral sense of the community' "[88] SO ORDERED
It is well-settled that as far as the constitutional prohibition goes, it is not so much the Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, concur.
extent as the nature of the punishment that determines whether it is, or is not, cruel
and unusual and that sentences of imprisonment, though perceived to be harsh, are
not cruel or unusual if within statutory limits.[89]
Moreover, every law has in its favor the presumption of constitutionality. The burden of
proving the invalidity of the statute in question lies with the appellant which burden, we
note, was not convincingly discharged. To justify nullification of the law, there must be
a clear and unequivocal breach of the Constitution, not a doubtful and argumentative
implication,[90] as in this case. In fact, the constitutionality of P.D. 1866 has been
upheld twice by this Court.[91] Just recently, the Court declared that "the pertinent laws
on illegal possession of firearms [are not] contrary to any provision of the
Constitution. . ."[92] Appellant's grievance on the wisdom of the prescribed penalty
should not be addressed to us. Courts are not concerned with the wisdom, efficacy or
morality of laws. That question falls exclusively within the province of Congress which
enacts them and the Chief Executive who approves or vetoes them. The only function
of the courts, we reiterate, is to interpret and apply the laws.
With respect to the penalty imposed by the trial court as affirmed by respondent court
(17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of
reclusion perpetua, as maximum), we reduce the same in line with the fairly recent
case of People v. Lian[93] where the Court en banc provided that the indeterminate
penalty imposable for simple illegal possession of firearm, without any mitigating or
aggravating circumstance, should be within the range of ten (10) years and one (1)
day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8)
months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is
discernible from the following explanation by the Court:

109
G.R. No. L-21325October 29, 1971
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLEO DRAMAYO, PATERNO ECUBIN, PRIOLO BILLONA, FRANCISCO
BILLONA, MODESTO RONQUILLA, CRESCENCIO SAVANDAL and SEVERO
SAVANDAL, defendants; PABLEO DRAMAYO and PATERNO ECUBIN,
defendants-appellant.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Arturo G.
Ibarra and Solicitor Conrado T. Limcaoco for plaintiff-appellee.
Arturo E. Balbastro for defendants-appellants.
FERNANDO, J.:
There is an element of ingenuity as well as of novel in the plea made by counsel de
oficio in this appeal of the accused Pableo Dramayo and Paterno Ecubin, who were
sentenced to life imprisonment for the murder of Estelito Nogaliza. The claim is
vigorously pressed that because the information alleged conspiracy on the part of
seven defendants, with only the two appellants being convicted, two having been
utilized as state witnesses and the other three having been acquitted on the ground of
insufficiency of evidence as to their culpability, the judgment of conviction against the
appellants cannot stand, there being a reasonable doubt as to their guilt. To bolster
such a contention, certain alleged deficiencies in the proof offered by the prosecution
were noted. A careful study of the evidence of record would leave no other rational
conclusion but that the deceased met his death at the hands of the appellants in the
manner as found by the lower court. Hence the appeal cannot prosper. We affirm.
The gory incident which was attended by a fatality started on the morning of January 9,
1964. The two accused, now appellants, Pableo Dramayo and Paterno Ecubin, in the
company of the deceased Estelito Nogaliza, all of Barrio Magsaysay, of the
Municipality of Sapao, Surigao del Norte, saw its chief of police. Their purpose was to
shed light on a robbery committed in the house of the deceased five days before by
being available as witnesses. The response was decidedly in the negative as they
themselves were prime suspects, having been implicated by at least two individuals
who had confessed. At about 7:00 o'clock of the same day, while they were in the
house of their co-accused Priolo Billona, the accused Dramayo invited all those
present including the other accused Francisco Billons, Modesto Ronquilla. Crescencio
and Severo Savandal, for a drinking session at a place at the back of the school
house. It was on that occasion that Dramayo brought up the idea of killing Estelito
Nogaliza so that he could not testify in the robbery case. The idea was for Dramayo
and Ecubin to ambush Estelito, who was returning from Sapao. The others were to
station themselves nearby. 1
Soon the unfortunate victim was sighted. He was accosted by Dramayo with a request
for a cigarette. It was then that Ecubin hit him with a piece of wood on the side of the
head near the right ear. Dramayo's participation consisted of repeated stabs with a
short pointed bolo as he lay prostrate from the blow of Ecubin. It was the former also,
who warned the rest of the group to keep their mouths sealed as to what had just
happened. His equanimity appeared undisturbed for early the next morning, he went to
the house of the deceased and informed the, latter's widow Corazon that he had just
seen the cadaver of Estelito. The barrio lieutenant and the chief of police were duly
notified. The latter, upon noticing blood stains on the trousers of Dramayo, asked him
to explain. The answer was that a skin ailment of his daughter was the cause thereof.
2 The death was due to the wounds inflicted, two in the epigastric region, one in the
right lumbar region, and another in the left breast.
It was on the basis of the above testimony offered by the prosecution that the lower
court reached its decision. Its dispositive portion found the accused, now appellant
Pableo Dramayo and Paterno Ecubin, guilty beyond reasonable doubt, of the crime of
[murder], defined and penalized under Art. 248 of the Revised Penal Code, qualified by
the circumstance of evident premeditation aggravated by night time, and imposes
upon each of the said accused, Pableo Dramayo and Paterno Ecubin, the penalty of
[reclusion perpetual]." 3 Reference was likewise made in such decision as to why the
other co-accused were not convicted, two of them, Crescencio Savandal and Severo
Savandal being utilized as state witnesses, and the others three, Priolo Billona,
Francisco Billona and Modesto Roquilla acquitted.
Why they should not be found guilty was explained in the appealed decision thus:
"From the beginning the accused Modesto Ronquilla maintained that he was not with
the group but that he was fishing in the sea during the night in question. These facts
that is, that none of the prosecution witnesses has testified that any of these three
accused actually helped in the killing of the deceased, Estelito Nogaliza; that these
three accused were included in the case only much later after the filing of this case
against Pableo Dramayo and Paterno Ecubin; the consistent contention of the accused
Modesto Ronquilla that he was out in the sea fishing during the night in question; and
the testimonies of the accused Priolo Billona [and] Francisco [and their witnesses,]
Juan Billona, Esperanza Oposa Billona, Guillerma Ponce, and Anselmo Lisondra,
given in a straight-forward manner, without hesitation, revealing a clear conscience,
and the fact that the testimonies of these witnesses have not been refuted by the PC
soldiers (whom they accused of maltreatment] when they were available to the
prosecution, cause the Court to entertain a very serious doubt as to the guilt of the
said accused." 4
The lower court was hardly impressed with the defense of alibi interposed by now
appellants Dramayo and Ecubin, and it must have been their lack of persuasive
character that must have led to the able brief of counsel de oficio, Atty. Arturo E.
Balbastro, stressing the absence of evidence sufficient to convict, there still being a
reasonable doubt to be implied from the fact that while conspiracy was alleged, only
two of the seven accused were held culpable. To repeat, a meticulous appraisal of the
evidence justifies a finding of the guilt of the appellants for the offense charged, thus
calling for the affirmance of the decision.
1. It is to be admitted that the starting point is the Presumption of innocence. So
it must be, according to the Constitution. 5 That is a right safeguarded both appellants.
Accusation is not, according to the fundamental law, synonymous with guilt. It is
incumbent on the prosecution demonstrate that culpability lies. Appellants were not
even called upon then to offer evidence on their behalf. Their freedom is forfeit only if
the requisite quantum of proof necessary for conviction be in existence. Their guilt be
shown beyond reasonable doubt. To such a standard this Court has always been
committed. There is need, therefore, for the most careful scrutiny of the testimony of
110
the state, both oral and documentary, independently whatever defense is offered by
the accused. Only if judge below and the appellate tribunal could arrive at a conclusion
that the crime had been committed precisely by the person on trial under such an
exacting test should sentence be one of conviction. It is thus required that
circumstance favoring his innocence be duly taken into count. The proof against him
must survive the reason; the strongest suspicion must not be permitted to sway away
judgment. The conscience must be satisfied that on the defendant could be laid the
responsibility for the offense charged; that not only did he perpetrate the act but that it
amounted to a crime. What is required then is moral certainty.
So it has been held from the 1903 decision of United States v. Reyes. 6 United States
v. Lasada, 7 decided in 1910, yields this excerpt: "By reasonable doubt is meant that
which of possibility may arise, but it is doubt engendered by an investigation of the
whole proof and an inability, after such investigation, to let the mind rest easy upon the
certainty of guilt. Absolute certain of guilt is not demanded by the law to convict of any
carnal charge but moral certainty is required, and this certainty is required as to every
proposition of proof regular to constitute the offense." 8 To the same effect is an
excerpt from the opinion of the late Justice Tuason in People v. Esquivel. 9 Thus: "In
this connection it may not be out of place to bring to the attention of prosecuting
attorneys the absolute necessity of laying before the court the pertinent facts as their
disposal with methodical and meticulous attention, clarifying contradictions and filling
up gaps and loopholes in their evidence, to the end that the court's mind may not be
tortured by doubts, that the innocent may not suffer and the guilty not escape
unpunished. Obvious to all, this is the prosecution's prime duty to the court, to the
accused, and to the state." 10
It is understandable why the stress should be on the absence of sufficient evidence to
establish the guilt of appellants beyond reasonable doubt, the defense of alibi
interposed hardly meriting any further discussion. It cannot be denied though that the
credible and competent evidence of record resulted in moral certainty being
entertained not only by the trial judge but by us as to the culpability of appellants. The
force of the controlling doctrines, on the other hand, required that the other three
accused be acquitted precisely because, unlike in the case of appellants, the requisite
quantum of proof to show guilt beyond reasonable doubt was not present. There is no
question as to the other two who testified for the state being likewise no long subject to
any criminal liability. The reference then to opinion of the late Justice Laurel, stressing
the need for adhering to the fundamental postulate that a finding of guilt is allowable
only when no reasonable doubt could be entertained, is unavailing. This is evident
from the very citation in the brief of appellants of the opinion of Justice Laurel in
People v. Manoji. 11 Thus: "Upon the other hand there are certain facts which if taken
together are sufficient to raise in the mind of the court a grave doubt as to the guilt of
the defendant-appellant, 'that doubt engendered by an investigation of the whole proof
and an inability after such investigation, to let the mind rest easy upon the certainty of
guilt.' (U.S. v. Lasada [1910], 18 Phil. 90, 96.) The finding of the two gold teeth of the
deceased the suitcase of Maradani, and the testimony of Erajio Ello that he gave the
hat ... to Maradani not only engender serious doubt in our minds as to the guilt of the
appellant but also seems to sustain the theory of the defense and strengthen the
suspicion of the trial court, that Maradani and Salupudin are not foreign to, or entirely
ignorant of, the killing of Seijin Ige. In the light of the facts and circumstances of record,
we feel that it is better to acquit a man upon the ground of reasonable doubt, even
though he may in reality be guilty, than to confine in the penitentiary for the rest of his
natural life a person who may be innocent. ..." 12 The facts of the present case
certainly do not fit within the above mold. Reliance on the part of appellants on the
above decision is therefore futile.
The judgment of conviction should not have occasioned any surprise on the part of the
two appellants, as from the evidence deserving of the fullest credence, their guilt had
been more than amply demonstrated. The presumption of innocence could not come
to their rescue as it was more than sufficiently overcome by the proof that was offered
by the prosecution. What would have been a blot on the law is that if, on the facts as
established, no reasonable doubt being entertained, the two appellants would have
been acquitted likewise just because the other five defendants, for the reasons above
stated, were not similarly sentenced. The principal contention raised is thus clearly
untenable. It must be stated likewise that while squarely advanced for the first time,
there had been cases where this Court, notwithstanding a majority of the defendants
being acquitted, the element of conspiracy likewise being allegedly present, did hold
the party or parties, responsible for the offense guilty of the crime charged, a moral
certainty having arisen as to their capability. 13
2. The brief for appellants did seek to fortify the allegation as to their guilt not
having been sufficiently demonstrated with the contention that the lower court
overlooked or did not properly consider material and significant facts of record that
ought to have substantially affected or altered the judgment. Even the most careful
reading of such brief, however, with due recognition of the vigor in which this particular
point is pressed, would not destroy the credibility of the facts as testified to concerning
the manner in which the deceased was killed and the motive that prompted appellants
to put an end to his life. That such a version could not have been concocted is shown
by the undeniable fact that the two appellants were duly convicted of robbery, with the
deceased as the offended party. It was understandable then why they would want to
do away with the principal witness against them. There was thus a strong inducement
for the appellants to have committed this crime of murder. With the testimony of record
pointing to no other conclusion except the perpetration of the killing by them, the effort
of their counsel, while to be expected from an advocate zealous in defense of his
clients' rights, certainly should not be attended with success. It suffices to reiterate the
well-settled principle that this Court has invariably respected the findings of facts of a
trial judge who was in a position to weigh and appraise the testimony before him
except when, as was not shown in this case, circumstances weight or influence were
ignored or disregarded by him. 14
WHEREFORE, the judgment of September 8, 1965 affirmed with the modification that
the indemnification to the heirs of Estelito Nogaliza should be in the sum P12,000.00.
With costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Villamor and
Makasiar, JJ., concur.
Barredo, J., took no part.
111
G.R. No. L-101 December 20, 1945
HAYDEE HERRAS TEEHANKEE, petitioner,
vs.
LEOPOLDO ROVIRA, ANTONIO QUIRINO, and POMPEYO DIAZ, respondents.
Vicente J. Francisco for petitioner.
Respondent Judges in their own behalf.
HILADO, J.:
Petitioner Haydee Herras Teehankee is a political detainee delivered by the Counter
Intelligence Corps, United States Army, to the Commonwealth Government, pursuant
to the Proclamation of General of the Army Douglas MacArthur, dated December 29,
1944. She was one of the petitioners in case No. L-44, "Raquiza vs. Bradford," of this
court (p. 50, ante). She is now confined in the Correctional Institution for Women under
the custody of the Commonwealth Government since October, 1945, when she was
thus delivered to the said government.
Under the date of October 2, 1945, petitioner, through her husband, Alberto
Teehankee, filed with the People's Court a petition wherein, invoking the provisions of
Executive Order No. 65, promulgated by His Excellency, the President of the
Philippines, dated September 3, 1945, she prayed that her immediate release be
ordered on the ground that no evidence exists upon which she could be charged with
any act punishable by law, or, alternatively, that the People's Court fix the bail for her
provisional liberty, in conformity with the aforesaid executive order, and upon approval
of such bail, that an order be forthwith issued directing then officer having official
custody of her person to immediately release her.
On October 4, 1945, the Hon. Antonio Quirino, one of the Associate Judges of the
People's Court, upon considering the said petition, required the Solicitor General "to
file his comment and recommendation as soon as possible."
On October 5, 1945, the Solicitor General filed recommendation in compliance with
said order, stating: "that on the strength of the evidence at hand, the reasonable basil
recommended for the provisional release of the petitioner be fixed at Fifty Thousand
Pesos (50,000)."
On October 9, 1945, the Hon. Leopoldo Rovira, Presiding Judge of the People's Court,
entered an order referring the petition for provisional release above mentioned for
consideration by the Fifth Division of said Court, but adding the following statement: "in
my opinion, it should be denied notwithstanding the recommendation of the Solicitor
General for her provisional release under a bond of Fifty Thousand Pesos (50,000)."
On the same date, October 9, 1945, the Hon. Pompeyo Diaz, Associate Judge of said
Court, entered an order disposing of said petition and denying the same "in view of the
gravity of the offense as can be deduced from the fact that the office of the Special
Prosecutors recommends as high as Fifty Thousand Pesos (50,000) for her provisional
release."
A motion having been filed by petitioner with the People's Court praying said court to
reconsider its order of October 9, 1945, denying her petition for provisional release the
Court, through Associate Judge Pompeyo Diaz, denied said motion.
In her present petition for the writs of certiorari and mandamus originally filed with this
Court on October 19, 1945, petitioner avers that the above-mentioned Judges of the
People's Court, in denying her petition for provisional liberty under bail, as well as her
motion for reconsideration, acted in excess of jurisdiction and with grave abuse of
discretion. Paragraph VII of this petition contains her allegations in support of this
charge.
Under the date of October 21, 1945, respondent Judge Pompeyo Diaz filed his answer
stating that the order denying bail "was issued under express mandate of the law",
citing section 19 of Commonwealth Act No. 682.
Article III, section 1 (16) of the Commonwealth Constitution provides that:
All persons shall before conviction be bailable by sufficient sureties, except those
charged with capital offenses when evidence of guilt is strong. Excessive bail shall not
be required.
Rule 110 of the Rules of Court provides in the following sections:
SEC. 3. Offenses less than capital before conviction by the Court of First Instance.
After judgement by a justice of the peace and before conviction by the court of First
Instance, the defendant shall be admitted to bail as of right.
SEC. 4. Noncapital offenses after conviction by the Court of First
Instance. After conviction by the Court of First Instance, defendant may, upon
application, be bailed at the discretion of the court.
SEC. 5. Capital offenses defined. A capital offense, as the term the time of its
commission, and at the time of the application to be admitted to bail, may be punished
by death.
SEC. 6. Capital offense not bailable. No person in custody for the commission of a
capital offense shall be admitted to bail if the evidence of his guilt is strong.
SEC. 7. Capital offenses burden of proof. On the hearing of an application for
admission to bail made by any person who is in custody for the commission of a
capital offense, the burden of showing that evidence of guilt is strong is on the
prosecution.lawphi1.net
SEC. 8. Notice of application to fiscal. When admission to bail is a matter of
discretion, the court must require that reasonable notice of the hearing of the
application for bail be given to the fiscal.
Section 66 of General Orders, No. 58 stipulates:
When admission to bail is a matter of discretion, the court must require that reasonable
notice of the hearing of the application for bail be given to the promotor fiscal.
Section 19 of Commonwealth Act No. 682 contains the following proviso:
SEC. 19. . . . Provided, however, That existing provisions of law to the contrary
notwithstanding, the aforesaid political prisoners may, in the discretion of the People's
Court, after due notice to the office of Special Prosecutors and hearing, be released on
bail, even prior to the presentation of the corresponding information, unless the Court
finds that there is strong evidence of the commission of a capital offense. . . . .
Section 22 of Commonwealth Act No. 682 ordains:
112
SEC. 22. The prosecution, trial and disposal of cases before the People's Court shall
be governed by existing laws and rules of court, unless otherwise expressly provided
herein . . . .
Against the petitioner herein no information had yet been presented when she filed her
petition dated October 2, 1945, containing the alternative prayer for the fixing of bail for
her provisional liberty. She there invokes Executive Order No. 65 of the President of
the Philippines, date September 3, 1945. The proviso above quoted from section 19 of
the People's Court Act (Commonwealth At No. 682) also existed in the statute books at
the time.
The able arguments adduced on both sides have received the most careful
consideration of the Court as befits the importance of the questions involved. However,
in the view we take of the case, a majority of the Court are of opinion that the only
question calling for decision at this time are: (1) whether Article III, section 1 (16) of the
Commonwealth Constitution is applicable to the instant case; (2) whether a hearing
should be held of the application for bail with attendance of the petitioner and the
Solicitor General or the latter's representative; and (3) if so, what kind of hearing it
should be.
1. As to the first question, we hold that Article III, section 1 (16) of the
Commonwealth Constitution is applicable to the instant case. This Constitutional
mandate refers to all persons, not only to persons against whom a complaint or
information has already been formally filed. It lays down the rule that all persons shall
before conviction be bailable except those charged with capital offenses when
evidence of guilt is strong. According to this provision, the general rule is that any
person, before being convicted of any criminal offense, shall be bailable, except when
he is charged with a capital offense and the evidence of his guilt is strong. Of course,
only those persons who have been either arrested, detained or otherwise deprived of
their liberty will ever have occasion to seek the benefits of said provision. But in order
that a person can invoke this constitutional precept, it is not necessary that he should
wait until a formal complaint or information is filed against him. From the moment he is
placed under arrest, detention or restraint by the officers of the law, he can claim this
guarantee of the Bill of Rights, and this right he retains unless and until he is charged
with a capital offense and evidence of his guilt is strong. Indeed if, as admitted on all
sides, the precept protects those already charged under a formal complaint or
information, there seems to be no legal or just reason for denying its benefits to one as
against whom the proper authorities may even yet conclude that there exists no
sufficient evidence of guilt. To place the former in a more favored position than the
latter would be, to say the least, anomalous and absurd. If there is a presumption of
innocence in favor of one already formally charged with criminal offense (Constitution,
Article III, section 1[17], a fortiori, this presumption should be indulged in favor of one
not yet so charged, although already arrested or detained.
In Cooleys Constitutional Limitations, 7th edition, pages 436-438, we read the
following:
Perhaps the most important of the protections to personal liberty consists in the mode
of trial which is secured to every person accused of crime. At the common law,
accusations of felony were made in the form of an indictment by a grand jury; and this
process is still retained in many of the States, while others have substituted in its stead
an information filed by the prosecuting officer of the State or county. The mode of
investigating the facts, however, is the same in all; and this is through a trial by jury,
surrounded by certain safeguards which are a well-understood part of the system, and
which the government cannot dispense with.
First, we may mention that the humanity of our law always presumes an accused party
innocent until he is proved to be guilty. This is a presumption which attends all the
proceedings against him, from their initiation until they result in a verdict, which either
finds the party guilty or converts the presumption of innocence into an adjudged fact.
If there were any mode short of confinement which would, with reasonable certainty,
insure the attendance of the accused to answer the accusation, it would not be
justifiable to inflict upon him that indignity, when the effect is to subject him, in a
greater or less degree, to the punishment of a guilty person, while as yet it is not
determined that he has committed any crime. If the punishment on conviction cannot
exceed in severity the forfeiture of a large sum of money, then it is reasonable to
suppose that such a sum of money, or an agreement by responsible parties to pay it to
the government in case the accused should fail to appear, would be sufficient security
for his attendance; and therefore, at the common law, it was customary to take security
of this character in all cases of misdemeanor; one or more friends of the accused
undertaking for his appearance for trial, and agreeing that a certain sum of money
should be levied of their goods and chattels, lands and tenements, if he made default.
But in the case of felonies, the privilege of giving bail before trial was not a matter of
right; and in this country, although the criminal code is much more merciful than it
formerly was in England, and in some cases the allowance of bail is almost a matter of
course, there are others in which it is discretionary with the magistrate to allow it or
not, and where it will sometimes be refused if the evidence of guilty is strong or the
presumption great. Capital offenses are not generally regarded as bailable; at least,
after indictment, or when the party is charged by the finding of a coroner's jury; . . . ."
All the Justice Cooley says in the foregoing quotations regarding the humanity of the
law in his jurisdiction and its presumption that an accused party is innocent until he is
proved to be guilty, is distinctly true also in ours where the constitutional, statutory, and
reglementary provisions on the point have been borrowed from America. The same
should be said of what he says regarding the granting of bail for provisional liberty
before conviction, and even after, in exceptional cases, of course, always subject to
the limitation established by our own Constitutional, laws and rules of court. From the
last part of said quotation it follows, firstly, that before indictment or charge by the
corner's jury, in the jurisdiction to which the author refers, there may be cases in which
even a capital offense is bailable, and, secondly, that even after indictment or the
finding of a corner's jury in these jurisdictions, there may be exceptional cases where a
capital offense is still bailable. Under our Constitution, as we have seen, all offenses
are bailable before conviction except capital offenses when evidence of guilt is strong.
In consonance with this constitutional provision, section 3 of Rule 110 of the Rules of
Court stipulates that non-capital offenses before conviction by the Court of First
Instance shall be bailable as of right; section 4 of the same Rule provides that after
conviction by the Court of First Instance such offense may, upon application, be
bailable at the discretion of the court; and section 6 of the said Rule provides that "no
person in custody for the commission of a capital offense shall be admitted to bail if the
evidence of his guilt is strong."
By the common law, all offenses including treason, murder, and other felonies, were
bailable before indictment found, although the granting or refusing of such bail in case
113
of capital offenses was a matter within the discretion of the court. (6 C. J., 953; WHEREFORE, it is the judgement of this Court that: (a) the order of the People's
emphasis supplied.) Court, dated October 9, 1945, denying petitioner's petition for provisional release
2. As to the second question, we hold that upon application by a political under bail, and the order of said Court, dated October 13, 1945, denying petitioner's
prisoner or detainee to the People's Court for provisional release under bail, a hearing, motion for reconsideration of said order of October 9, 1945, which we declare to have
summary or otherwise, should be held with due notice to the Office of Special been entered with grave abuse of discretion, be set aside; and (b) that for the proper
Prosecutors, as well as to the prisoner or detainee. It will be remembered that section application of the pertinent constitutional, statutory, and reglementary provisions
22 of the People's Court Act subjects the prosecution, trial, and disposal of cases alluded to in the body of this decision, a hearing of the petitioner's application for bail
before the People's Court to existing laws and rules of court," unless otherwise be held before the People's Court with due notice to the Solicitor General, as well as to
expressly provide in said act. Consequently, the hearing and disposal of application for the petitioner, as hereinabove outlined, said hearing, whether summary or otherwise,
bail for provisional release before the People's Court should be governed by existing to be such as would enable the People's Court to exercise its sound discretion in the
laws and rules of court, the hearing and disposal of such applications being a mere disposal of the aforesaid petition. Without costs. So ordered.
part of the "prosecution, trial, and disposal" of the corresponding cases before said Moran, C. J., and Briones, J., concur.
court. If attention should be directed to the clause "unless otherwise expressly Jaranilla, Feria, Pablo, and Bengzon, JJ., concur only in the result.
provided herein " in said section 22, in connection with the first proviso of section 19 of
the same act, it should be borne in mind that the provisions of said act should be
construed in harmony with those of the Constitution, under the well-settled rule of the
statutory construction that legislative enactments should be construed, wherever
possible, in manner that would avoid their conflicting with the fundamental law.
3. As to the third question. While it is true that the Solicitor General on October
3, 1945, recommended Fifty Thousand Pesos (P50,000) as a reasonable bail "on the
strength of the evidence at hand," it may happen that thereafter his office may have
secured additional evidence which in addition to or in connection with the already
possessed, in his opinion is sufficiently strong to prove petitioner's guilt for a capital
offense, in which case, he may yet decide to oppose the application for bail heretofore
filed by petitioner at the hearing thereof hereinafter ordered. It will be remembered that
petitioner, while under the custody of the Counter Intelligence Corps, United States
Army, was charged with (a) "Active Collaboration with the Japanese" and (b) "Previous
Association with the enemy" (Raquiza vs. Bradford, p. 50, ante). Under the definition of
the treason in the Revised Penal Code, active collaboration with the Japanese and
association with them during the war in the Philippines may constitute treason, a
capital offense.
ART. 114. Any person who, owing allegiance to the United States or the Government
of the Philippine Islands, not being a foreigner, . . . adheres to their enemies, giving
them aid or comfort within the Philippine Islands or elsewhere, shall be punished by
reclusion temporal to death and shall pay a fine not to exceed 20,000 pesos. (Revised
Penal Code.)
Of course, it may also happen that either because no such further evidence has come
into his possession or because, in his judgement, the public interest would be better
served by him withholding the evidence that he has until the trial in the merits, he
would prefer not to oppose the application for bail. At the hearing of the application the
Solicitor General will be free to adopt one course or the other. If he opposes, the
burden of proof will be on him to show the petitioner is not entitled to bail. Petitioner
will have the right to offer evidence to prove her right thereto. In fine, the hearing is for
the purpose of enabling the People's Court to exercise its sound discretion as to
whether or not under the Constitution and laws in force petitioner is entitled to
provisional release under bail.

114
PEOPLE OF THE PHILIPPINES, Petitioner,
- versus -
SANDIGANBAYAN (Special Division) and JOSE JINGGOY ESTRADA,
Respondents.
G.R. No. 158754
DECISION
GARCIA, J.:
The instant petition for certiorari under Rule 65 of the Rules of Court seeks to reverse
and set aside the Resolution[1] of herein respondent Sandiganbayan (Special Division)
issued on March 6, 2003 in Criminal Case No. 26558, granting bail to private
respondent Senator Jose Jinggoy Estrada (hereafter Jinggoy for brevity), as effectively
reiterated in its Resolution[2] of May 30, 2003, denying the petitioners motion for
reconsideration.
The factual antecedents which gave rise to this proceeding are set forth in the Courts
Decision[3] of February 26, 2002, in G.R. No. 148965, to wit:
In November 2000, as an offshoot of the impeachment proceedings against Joseph
Ejercito Estrada, then President of the Republic of the Philippines, five criminal
complaints against the former President and members of his family, his associates,
friends and conspirators were filed with the Office of the Ombudsman.
On April 4, 2001, the Ombudsman issued a Joint Resolution finding probable cause
warranting the filing with the Sandiganbayan of several criminal Informations against
the former President and the other respondents therein. One of the Informations was
for the crime of plunder under Republic Act [RA] No. 7080 and among the respondents
was herein petitioner Jose Jinggoy Estrada, then mayor of San Juan, Metro Manila.
The Information was amended and filed on April 18, 2001. Docketed as Criminal Case
No. 26558, the case was assigned to [the] respondent Third Division of the
Sandiganbayan. xxx. (Emphasis added.)
The amended information referred to, like the original, charged respondent Jinggoy,
together with the former President and several others, with plunder, defined and
penalized under RA No. 7080, as amended by Section 12 of RA No. 7659, allegedly
committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within
the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A
PUBLIC OFFICER, , by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER
PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,
AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there
wilfully (sic), unlawfully and criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL
VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE
FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A
combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,
MONEY IN THE AGGREGATE AMOUNT OF (P545,000,000.00), MORE OR LESS,
FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in
connivance with co-accused Jose Jinggoy Estrada, , [and] JOHN DOES AND JANE
DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing
DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public
funds [P130,000,000.00], more or less, representing a portion of the [P200,000,000]
tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171,
BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane
Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT,
the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000
SHARES OF STOCK MORE OR LESS, and the Social Security System (SSS),
329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS [P744,612,450.00],
RESPECTIVELY, OR A TOTAL OF MORE OR LESS [P1,847,578,057.50]; AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR
IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN
THE AMOUNT [P189,700,000.00], MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI
BANK UNDER THE ACCOUNT NAME JOSE VELARDE;
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR
LESS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT
NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK.[4]
What transpired next are narrated in the same February 26, 2002 Decision in G.R. No.
148965, thus:
On April 25, 2001, the respondent court issued a warrant of arrest for [Jinggoy] and his
co-accused. On its basis, [Jinggoy] and his coaccused were placed in custody of the
law.
On April 30, 2001, [Jinggoy] filed a Very Urgent Omnibus Motion alleging that: (1) no
probable cause exists to put him on trial and hold him liable for plunder, it appearing
that he was only allegedly involved in illegal gambling and not in a series or
combination of overt or criminal acts as required in R.A. No. 7080; and (2) he is
entitled to bail as a matter of right. [He] prayed that he be excluded from the Amended
Information . In the alternative, [he] also prayed that he be allowed to post bail ..
115
On June 28, 2001, [he] filed a Motion to Resolve Mayor Jose Jinggoy Estradas Motion
To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And
That On Its Face, the Facts Charged In The Information Do Not Make Out A Non-
Bailable Offense As To Him.
xxx xxx xxx
On July 9, 2001, respondent Sandiganbayan issued a Resolution denying [Jinggoys]
Motion to Quash and Suspend and Very Urgent Omnibus Motion. [His] alternative
prayer to post bail was set for hearing after arraignment of all accused. xxx
xxx xxx xxx
The following day, July 10, 2001, [Jinggoy] moved for reconsideration of the
Resolution. Respondent court denied the motion and proceeded to arraign [him]. [He]
refused to make his plea prompting respondent court to enter a plea of not guilty for
him.[5] (Emphasis and words in brackets added)
From the denial action of the Sandiganbayan immediately adverted to, Jinggoy
interposed a petition for certiorari before this Court claiming that the respondent
Sandiganbayan committed grave abuse of discretion in, inter alia, (a) sustaining the
charge against him for alleged offenses and with alleged conspirators with whom he is
not even connected, and (b) in not fixing bail for him. Pending resolution of this
petition, docketed as G.R. No. 148965, Jinggoy filed with the Sandiganbayan an
Urgent Second Motion for Bail for Medical Reasons. The Ombudsman opposed the
motion. For three (3) days in September 2001, the Sandiganbayan conducted hearings
on the motion for bail, with one Dr. Roberto Anastacio of the Makati Medical Center
appearing as sole witness for Jinggoy.[6]
On December 18, 2001, Jinggoy filed with the Court an Urgent Motion praying for early
resolution of his Petition for Bail on Medical/Humanitarian Considerations. He
reiterated his earlier plea for bail filed with the Sandiganbayan. On the same day, the
Court referred the motion to the Sandiganbayan for resolution and directed said court
to make a report, not later than 8:30 in the morning of December 21, 2001.[7]
The report was submitted as directed. Attached to the Report was a copy of the
Sandiganbayans Resolution dated December 20, 2001 denying Jinggoys motion for
bail for lack of factual basis. According to the graft court, basing its findings on the
earlier testimony of Dr. Anastacio, Jinggoy failed to submit sufficient evidence to
convince the court that the medical condition of the accused requires that he be
confined at home and for that purpose that he be allowed to post bail. [8]
On February 26, 2002, the Court dismissed Jinggoys petition in G.R. No. 148965, on
the following rationale:
The constitutional mandate makes the grant or denial of bail in capital offenses hinge
on the issue of whether or not the evidence of guilt of the accused is strong. This
requires that the trial court conduct bail hearings xxx. The burden of proof lies with the
prosecution to show strong evidence of guilt.
This Court is not in a position to grant bail to [Jinggoy] as the matter requires
evidentiary hearing that should be conducted by the Sandiganbayan. The hearings on
which respondent court based its Resolution of December 20, 2001 involved the
reception of medical evidence only and which evidence was given in September 2001,
five months ago. The records do not show that evidence on petitioners guilt was
presented before the lower court.
Upon proper motion of [Jinggoy], respondent Sandiganbayan should conduct hearings
to determine if the evidence of [Jinggoys] guilt is strong as to warrant the granting of
bail to [him].[9] (Underscoring and words in brackets added).
On April 17, 2002, Jinggoy filed before the Sandiganbayan an Omnibus Application for
Bail [10] against which the prosecution filed its comment and opposition. Bail hearings
were then conducted, followed by the submission by the parties of their respective
memoranda.
In the herein assailed Resolution[11] of March 6, 2003, respondent Sandiganbayan
(Special Division) granted the omnibus application for bail, disposing as follows:
WHEREFORE, in light of all the facts and applicable law and jurisprudence, JOSE
JINGGOY ESTRADAs OMNIBUS APPLICATION FOR BAIL dated April 16, 2002 is
GRANTED. Bail for accused-movant is fixed at Five Hundred Thousand Pesos
(Php500,000.00) to be paid in cash and his release is ordered upon the posting thereof
and its approval, unless movant is being held for some other legal cause.
This resolution is immediately executory.
SO ORDERED.
Petitioner filed a motion for reconsideration thereto which the respondent court denied
via the herein equally assailed May 30, 2003 Resolution,[12] the dispositive part of
which reads:
WHEREFORE, for lack of merit, the prosecutions MOTION FOR RECONSIDERATION
[RE: GRANT OF JOSE JINGGOY ESTRADAS PETITION FOR BAIL] dated 13 March
2003 is DENIED.
SO ORDERED.
Hence, the present petition on the submission[13] that respondent Special Division of
the Sandiganbayan acted with grave abuse of discretion amounting to lack or excess
of jurisdiction -
I.
IN GRANTING BAIL TO RESPONDENT JINGGOY ESTRADA,[CONSIDERING] THE
WELL-ESTABLISHED THEORY OF OVERLAPPING CONSPIRACIES AND, THUS,
GRIEVOUSLY DISREGARDED THE APPLICATION OF ACCEPTED CRIMINAL LAW
PRECEPTS AND THEREBY SET A DANGEROUS PRECEDENT.
II.
xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA WHEN IT
FAILED TO RECOGNIZE THAT THE CONDUCT OF RESPONDENT JINGGOY
ESTRADA POINTED TO A CONCURRENCE OF SENTIMENT OR CRIMINAL
DESIGN INDICATING THE EXISTENCE OF A CONSPIRACY BETWEEN ACCUSED
JOSEPH ESTRADA AND JINGGOY ESTRADA.
III.
xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA
CONSIDERING THAT THE UNDISPUTED FACT CLEARLY EVIDENCES THAT
RESPONDENT JINGGOY ESTRADA, EVEN WITHOUT A FINDING OF
CONSPIRACY, IS EQUALLY GUILTY AND LIABLE AS ACCUSED JOSEPH
ESTRADA HIMSELF BY HIS INDISPENSABLE COOPERATION AND/OR DIRECT
PARTICIPATION IN THE COMMISSION OF THE CRIME OF PLUNDER.
116
IV.
xxx WHEN IT LIMITED THE CONSIDERATION OF THE EVIDENCE, AS WELL AS
THE POTENTIAL [LIABILITY] OF RESPONDENT JINGGOY ESTRADA, TO
SUBPARAGRAPH A OF THE AMENDED INFORMATION.
The imputation of grave abuse of discretion to the public respondent is untenable.
To begin with, Section 13 of Article III (Bill of Rights) of the Constitution mandates:
Section 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. xxx.
Even if the capital offense charged is bailable owing to the weakness of the evidence
of guilt, the right to bail may justifiably still be denied if the probability of escape is
great.[14] Here, ever since the promulgation of the assailed Resolutions a little more
than four (4) years ago, Jinggoy does not, as determined by Sandiganbayan, seem to
be a flight risk. We quote with approval what the graft court wrote in this regard:
It is not open to serious doubt that the movant [Jinggoy] has, in general, been
consistently respectful of the Court and its processes. He has not ominously shown, by
word or by deed, that he is of such a flight risk that would necessitate his continued
incarceration. Bearing in mind his conduct, social standing and his other personal
circumstances, the possibility of his escape in this case seems remote if not nil.[15]
The likelihood of escape on the part individual respondent is now almost nil, given his
election on May 10, 2004, as Senator of the Republic of the Philippines. The Court
takes stock of the fact that those who usually jump bail are shadowy characters
mindless of their reputation in the eyes of the people for as long as they can flee from
the retribution of justice. On the other hand, those with a reputation and a respectable
name to protect and preserve are very unlikely to jump bail. The Court, to be sure,
cannot accept any suggestion that someone who has a popular mandate to serve as
Senator is harboring any plan to give up his Senate seat in exchange for becoming a
fugitive from justice.
Petitioners first argument denigrates as grave abuse of discretion the public
respondents rejection of the theory of overlapping conspiracies, which, in the abstract,
depicts a picture of a conspirator in the first level of conspiracy performing acts which
implement, or in furtherance of, another conspiracy in the next level of which the actor
is not an active party. As the petitioners logic goes following this theory, respondent
Jinggoy is not only liable for conspiring with former President Estrada in the acquisition
of ill-gotten wealth from jueteng under par. (a) of the amended information. He has
also a culpable connection with the conspiracy, under par. (b), in the diversion of the
tobacco excise tax and in receiving commissions and kickbacks from the purchase by
the SSS and GSIS of Belle Corporation shares and other illegal sources under par. (c)
and (d), albeit, he is not so named in the last three paragraphs. And since the central
figure in the overlapping conspiracies, i.e., President Estrada, is charged with a capital
offense, all those within the conspiracy loop would be considered charged with the
same kind of non-bailable offense.
Explaining its point, petitioner cites People v. Castelo[16] which, as here, also involves
multiple levels of conspiracies. Just like in the present case where the lead accused is
a former President no less, the prime suspect in Castelo was also a powerful high-
ranking government official a former Judge who later rose to hold, in a concurrent
capacity, the positions of Secretary of Justice and Secretary of National Defense, to be
precise. In Castelo, charges and countercharges were initially hurled by and between
Castelo and Senator Claro Recto, who was then planning to present Manuel Monroy
as star witness against Castelo in a scandal case. Castelo left the Philippines for
Korea. While away, someone shot Monroy dead. Evidence pointed to a conspiracy led
by a certain Ben Ulo (who appears to be the mastermind) and a group of confidential
agents of the Department of National Defense, one of whom was the triggerman.
Coincidentally, Ben Ulo was a close bodyguard of Castelo. In the end, the Solicitor
General tagged Ben Ulo (not Castelo) as the central figure in the conspiracy. This
notwithstanding, the Court held Castelo guilty beyond reasonable doubt for murder,
because only he had a motive for desiring Monroys demise. The conspiracy between
Castelo and Ben Ulo was then determined to be overlapping with the conspiracy
between Ben Ulo and the confidential agents, one of whom was the triggerman.
Further explaining the theory of overlapping conspiracies, petitioner cites the ruling in
People v. Ty Sui Wong,[17] featuring a love triangle involving a certain Victor and
Mariano, each out to win the heart of Ruby. Victor left Manila for Mindanao. While
Victor was away, the dead body of Mariano was found with multiple stab wounds in a
dark alley in Pasay. Evidence pointed to a conspiracy among Sampaloc hoodlums who
had no direct link with Victor. However, one of the neighbors of the Sampaloc
hoodlums was a classmate of Victor. In the end, on the basis of interlocking
confessions, the Court found Victor and his classmate together with all the Sampaloc
hoodlums guilty of murder.
Positing the applicability of Castelo and Ty Sui Wong under the premises, petitioner
presently argues:
It should be noted that this is the same scenario of accused Joseph Estrada conspiring
with former Gov. Singson for the collection and receipt of bribes (jueteng protection
money); and of former Gov. Singson involving respondent Jinggoy Estrada in yet
another level of conspiracy in pursuit of the first, i.e., the regular collection of jueteng
protection money for accused Joseph Estrada; and, respondent Jinggoy Estrada,
aware of the details of the conspiracy between accused Joseph Estrada and Gov.
Singson, agreeing to remit the greater part of his collection of bribes to accused
Joseph Estrada as its ultimate beneficiary. Thus, respondent Jinggoy Estrada reached
an agreement with former Gov. Singson, executed the plan and participated in
furtherance of the conspiracy for the receipt and collection of jueteng protection
money, i.e., collecting P3 Million in jueteng protection money every month; remitting P2
Million thereof to former Gov. Singson for delivery to accused Joseph Estrada and
retaining P1 Million thereof for himself.
Similarly, therefore, respondent Jinggoy Estrada should have been denied bail since
he is as guilty and liable as accused Joseph Estrada for the non-bailable offense of
Plunder.[18]
As we see it, the rulings in Castelo and Ty Sui Wong are not on all-fours applicable to
and of governing sway to the issue of the propriety of revoking Jinggoys release on
bail.
117
As it were, the petitioner erroneously equates the provisional grant of bail to
respondent Jinggoy to his virtual acquittal in Criminal Case No. 26558. Petitioner is
wrong. Castelo and Ty Sui Wong contextually dealt with the guilt of culprits therein for
the crimes of murder after all the evidence had been adduced. Unlike in this
proceeding, the propriety of a grant of bail, given the evidence for or against the bail
application, was not an issue in Castelo and Ty Sui Wong. And in the present case,
respondent Sandiganbayan is still in the process of determining the facts and merits of
the main case. In the words of the public respondent:
As a cautionary parting word, it must be categorically stated herein that in making the
above pronouncements, this Court [Sandiganbayan] is not making any judgment as to
the final outcome of this case either with respect to movant [Jinggoy] or with respect to
accused Estrada. This Court [Sandiganbayan] is simply called to determine whether, at
this stage, the evidence of movant's guilt is strong as to warrant his temporary release
on bail. xxx.[19]
Revoking the bail thus granted to respondent Jinggoy, as the petitioner urges, which
necessarily implies that the evidence of his guilt is strong, would be tantamount to
preempting the Sandiganbayans ongoing determination of the facts and merits of the
main case.
Petitioners second and third arguments focus on the possible degrees of participation
of Jinggoy in the crime of Plunder. Noticeably, both arguments, if pursued to their
respective logical conclusions, tend to cancel each other out, one leading as it were to
a direction quite the opposite of the other. For while the second argument attempts to
establish an implied conspiracy between Jinggoy and his father - hence, the guilt of
one is the guilt of the other - the third argument eschews the idea of conspiracy, but
respondent Jinggoy is nonetheless equally guilty as President Estrada because of his
indispensable cooperation and/or direct participation in the crime of Plunder.
By statutory definition, conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it.[20]
Venturing into the gray areas of the concept of conspiracy, petitioner cites the following
obiter defining implied conspiracy, thus:
When by their acts, two or more persons proceed toward the accomplishment of the
same felonious object, with each doing his act, so that their acts though seemingly
independent were in fact connected, showing a closeness of formal association and
concurrence of sentiment, conspiracy may be inferred.[21]
Admittedly, direct proof is not essential to establish conspiracy. Since by its nature
conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence.
Consequently, the presence of the concurrence of minds which is involved in
conspiracy may be inferred from proof of facts and circumstances which, taken
together, apparently indicate that they are merely parts of some complete whole. If it is
proved that two or more persons aimed by their acts towards the accomplishment of
the same unlawful object, each doing a part so that their combined acts, though
apparently independent, were in fact connected and cooperative, indicating a
closeness of personal association and a concurrence of sentiment, a conspiracy may
be inferred though no actual meeting among them to concert is proved. That would be
termed an implied conspiracy.[22]
From the above pronouncements, petitioner then proceeds to present voluminous
documents and transcripts of stenographic notes purporting to prove that Jinggoy had
been deep inside the web of implied conspiracy under the second argument of this
petition. From the implied conspiracy theory, it then shifts gears to embrace the equally
guilty hypothesis under the fall-back third argument.
Regardless, however, of whatever legal strategy petitioner may have in mind, the
fundamental principle that the Court is not a trier of facts remains. Petitioners second
and third arguments are to be sure relevant to the proceedings for the grant or denial
of bail that were pending before in the Sandiganbayan. They are of little moment here
where the only issue now is whether or not there was grave abuse of discretion on the
part of the Sandiganbayan in granting bail to the private respondent.
With the view we take of this case, the respondent court did not commit grave abuse of
discretion in issuing its assailed resolutions, because the grant of bail therein is
predicated only on its preliminary appreciation of the evidence adduced in the bail
hearing to determine whether or not deprivation of the right to bail is warranted.
Needless to stress, a grant of bail does not prevent the trier of facts, the same
AntiGraft Court, from making a final assessment of the evidence after full trial on the
merits. As jurisprudence teaches:
xxx Such appreciation [of evidence] is at best preliminary and should not prevent the
trial judge from making a final assessment of the evidence before him after full trial. It
is not an uncommon occurrence that an accused person granted bail is convicted in
due course. [23]
Petitioners last argument is, at bottom, an attempt to have the Court reverse in this
case its earlier holding in another case - G.R. No. 148965 - where we stated:
The Amended Information, in its first two paragraphs, charges petitioner [Jinggoy] and
his other co-accused with the crime of plunder. The first paragraph names all the
accused, while the second paragraph describes in general how plunder was
committed and lays down most of the elements of the crime itself. Sub-paragraphs (a)
to (d) describe in detail the predicate acts that constitute the crime and name in
particular the co-conspirators of former President Estrada in each predicate act. The
predicate acts alleged in the said four sub-paragraphs correspond to the items
enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate
act of receiving, on several instances, money from illegal gambling, in consideration of
toleration or protection of illegal gambling, and expressly names petitioner [Jinggoy] as
one of those who conspired with former President Estrada in committing the offense.
This predicate act corresponds with the offense described in item [2] of the
enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the
predicate act of diverting, receiving or misappropriating a portion of the tobacco excise
tax share allocated for the province of Ilocos Sur, which act is the offense described in
item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not
mention petitioner but instead names other conspirators of the former President.
Subparagraph (c) alleged two predicate acts that of ordering the (GSIS) and the
(SSS) to purchase shares of stock of Belle Corporation, and collecting or receiving
commissions from such purchase from the Belle Corporation which became part of the
deposit in the Jose Velarde account at the Equitable-PCI Bank. These two predicate
acts fall under items [2] and [3] in the enumeration of R.A. No. 7080, and was allegedly
committed by the former President in connivance with John Does and Jane Does.
118
Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly
enriched himself from commissions, gifts, kickbacks, in connivance with John Does As a final consideration, the Court notes a statement made by the respondent court
and Jane Does, and deposited the same under his account name Jose Velarde at the which adds an appropriate dimension to its resolve to grant bail subject of this
Equitable-PCI Bank. This act corresponds to the offense under item [6] in the recourse. Wrote that court in its assailed resolution of March 6, 2003:
enumeration of Section 1 (d) of R.A. No. 7080.
xxx Corollarily, it is not amiss to state that, at this time, there looms the possibility that,
From the foregoing allegations of the Amended Information, it is clear that all the in case of conviction, [respondent Jinggoys] criminal liability would probably not
accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired with warrant the death penalty or reclusion perpetua. (Underscoring in the original; Words
former President Estrada to enable the latter to amass, accumulate or acquire ill- in bracket added).
gotten wealth . As the Amended Information is worded, however, it is not certain
whether the accused in sub-paragraphs (a) to (d) conspired with each other to enable WHEREFORE, the instant petition is DISMISSED.
the former President to amass the subject ill-gotten wealth. In light of this lack of No pronouncement as to costs.
clarity, petitioner cannot be penalized for the conspiracy entered into by the other
SO ORDERED.
accused with the former President as related in the second paragraph of the Amended
Information in relation to its sub-paragraphs (b) to (d). We hold that petitioner can be
held accountable only for the predicate acts [illegal gambling] he allegedly committed
as related in sub-paragraph (a) of the Amended Information which were allegedly done
in conspiracy with the former President whose design was to amass ill-gotten wealth
amounting to more than P4 billion.[24] (Emphasis added.)
Obviously hoping to maneuver around the above ruling so as to implicate individual
respondent for predicate acts described in sub-paragraphs (b), (c) and (d) of the
Amended Information, petitioner now argues:
It should be emphasized that in the course of the proceedings in the instant case,
respondent Jinggoy Estrada waived the benefit of the said ruling and opted, instead, to
participate, as he did participate and later proceeded to cross-examine witnesses
whose testimonies were clearly offered to prove the other constitutive acts of Plunder
alleged in the Amended Information under sub-paragraphs b, c and d.[25]
We disagree.
At bottom, the petitioner assumes that the ruling accorded benefits to respondent
Jinggoy that were inexistent at the start of that case. But no such benefits were
extended, as the Court did not read into the Amended Information, as couched,
something not there in the first place. Respondent Jinggoys participation, if that be the
case, in the proceedings involving sub-paragraphs b, c and d, did not change the legal
situation set forth in the aforequoted portion of the Courts ruling in G.R. No. 148965.
For when it passed, in G.R. No. 148965, upon the inculpatory acts envisaged and
ascribed in the Amended Information against Jinggoy, the Court merely defined what
he was indicted and can be penalized for. In legal jargon, the Court informed him of the
nature and cause of the accusation against him, a right guaranteed an accused under
the Constitution.[26] In fine, all that the Court contextually did in G.R. No. 148965 was
no more than to implement his right to be informed of the nature of the accusation in
the light of the filing of the Amended Information as worded. If at all, the Courts holding
in G.R. No. 148965 freed individual respondent from the ill effects of a wrong
interpretation that might be given to the Amended Information.
In all, the Court rules that public respondent Sandiganbayan (Special Division) did not
commit grave abuse of discretion when, after conducting numerous bail hearings and
evaluating the weight of the prosecutions evidence, it determined that the evidence
against individual respondent was not strong and, on the basis of that determination,
resolved to grant him bail.
119
G.R. No. 7081 September 7, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
TAN TENG, defendant-appellant.
Chas A. McDonough, for appellant.
Office of the Solicitor General Harvey, for appellee.
JOHNSON, J.:
This defendant was charged with the crime of rape. The complaint alleged:
That on or about September 15, 1910, and before the filing of this complaint, in the city
of Manila, Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally,
and employing force, lie and have carnal intercourse with a certain Oliva Pacomio, a
girl 7 years of age.
After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the
defendant guilty of the offense of abusos deshonestos, as defined and punished under
article 439 of the Penal Code, and sentenced him to be imprisoned for a period of 4
years 6 months and 11 days of prision correccional, and to pay the costs.
From that sentence the defendant appealed and made the following assignments of
error in this court:
I. The lower court erred in admitting the testimony of the physicians about
having taken a certain substance from the body of the accused while he was confined
in jail and regarding the chemical analysis made of the substance to demonstrate the
physical condition of the accused with reference to a venereal disease.
II. The lower court erred in holding that the complainant was suffering from a
venereal disease produced by contact with a sick man.
III. The court erred in holding that the accused was suffering from a venereal
disease.
IV. The court erred in finding the accused guilty from the evidence.
From an examination of the record it appears that the offended party, Oliva Pacomio, a
girl seven years of age, was, on the 15th day of September , 1910, staying in the
house of her sister, located on Ilang-Ilang Street, in the city of Manila; that on said day
a number of Chinamen were gambling had been in the habit of visiting the house of
the sister of the offended party; that Oliva Pacomio, on the day in question, after
having taken a bath, returned to her room; that the defendant followed her into her
room and asked her for some face powder, which she gave him; that after using some
of the face powder upon his private parts he threw the said Oliva upon the floor,
placing his private parts upon hers, and remained in that position for some little time.
Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered that
the latter was suffering from a venereal disease known as gonorrhea. It was at the
time of this discovery that Oliva related to her sister what happened upon the morning
of the 15th of September. The sister at once put on foot an investigation to find the
Chinaman. A number of Chinamen were collected together. Oliva was called upon to
identify the one who had abused her. The defendant was not present at first. later he
arrived and Oliva identified him at once as the one who had attempted to violate her.
Upon this information the defendant was arrested and taken to the police station and
stripped of his clothing and examined. The policeman who examined the defendant
swore from the venereal disease known as gonorrhea. The policeman took a portion of
the substance emitting from the body of the defendant and turned it over to the Bureau
of Science for the purpose of having a scientific analysis made of the same. The result
of the examination showed that the defendant was suffering from gonorrhea.
During the trial the defendant objected strongly to the admissibility of the testimony of
Oliva, on the ground that because of her tender years her testimony should not be
given credit. The lower court, after carefully examining her with reference to her ability
to understand the nature of an oath, held that she had sufficient intelligence and
discernment to justify the court in accepting her testimony with full faith and credit.
With the conclusion of the lower court, after reading her declaration, we fully concur.
The defense in the lower court attempted to show that the venereal disease of
gonorrhea might be communicated in ways other than by contact such as is described
in the present case, and called medical witnesses for the purpose of supporting the
contention. Judge Lobingier, in discussing that question said:
We shall not pursue the refinement of speculation as to whether or not this disease
might, in exceptional cases, arise from other carnal contact. The medical experts, as
well as the books, agree that in ordinary cases it arises from that cause, and if this was
an exceptional one, we think it was incumbent upon the defense to bring it within the
exception.
The offended party testified that the defendant had rested his private parts upon hers
for some moments. The defendant was found to be suffering from gonorrhea. The
medical experts who testified agreed that this disease could have been communicated
from him to her by the contact described. Believing as we do the story told by Oliva,
we are forced to the conclusion that the disease with which Oliva was suffering was
the result of the illegal and brutal conduct of the defendant. Proof, however, that Oliva
constructed said obnoxious disease from the defendant is not necessary to show that
he is guilty of the crime. It is only corroborative of the truth of Oliva's declaration.
The defendant attempted to prove in the lower court that the prosecution was brought
for the purpose of compelling him to pay to the sister of Oliva a certain sum of money.
The defendant testifed and brought other Chinamen to support his declaration, that the
sister of Oliva threatened to have him prosecuted if he did not pay her the sum of P60.
It seems impossible to believe that the sister, after having become convinced that
Oliva had been outraged in the manner described above, would consider for a moment
a settlement for the paltry sum of P60. Honest women do not consent to the violation
of their bodies nor those of their near relatives, for the filthy consideration of mere
money.
In the court below the defendant contended that the result of the scientific examination
made by the Bureau of Science of the substance taken from his body, at or about the
time he was arrested, was not admissible in evidence as proof of the fact that he was
suffering from gonorrhea. That to admit such evidence was to compel the defendant to
testify against himself. Judge Lobingier, in discussing that question in his sentence,
said:
120
The accused was not compelled to make any admissions or answer any questions,
and the mere fact that an object found on his person was examined: seems no more to
infringe the rule invoked, than would the introduction in evidence of stolen property
taken from the person of a thief.
The substance was taken from the body of the defendant without his objection, the
examination was made by competent medical authority and the result showed that the
defendant was suffering from said disease. As was suggested by Judge Lobingier, had
the defendant been found with stolen property upon his person, there certainly could
have been no question had the stolen property been taken for the purpose of using the
same as evidence against him. So also if the clothing which he wore, by reason of
blood stains or otherwise, had furnished evidence of the commission of a crime, there
certainly could have been no objection to taking such for the purpose of using the
same as proof. No one would think of even suggesting that stolen property and the
clothing in the case indicated, taken from the defendant, could not be used against him
as evidence, without violating the rule that a person shall not be required to give
testimony against himself.
The question presented by the defendant below and repeated in his first assignment of
error is not a new question, either to the courts or authors. In the case of Holt vs. U.S.
(218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this question, said:
But the prohibition of compelling a man in a criminal court to be a witness against
himself, is a prohibition of the use of physical or moral compulsion, to extort
communications from him, not an exclusion of his body as evidence, when it may be
material. The objection, in principle, would forbid a jury (court) to look at a person and
compare his features with a photograph in proof. Moreover we are not considering how
far a court would go in compelling a man to exhibit himself, for when he is exhibited,
whether voluntarily or by order, even if the order goes too far, the evidence if material,
is competent
The question which we are discussing was also discussed by the supreme court of the
State of New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that
case the court said, speaking through its chancellor:
It was not erroneous to permit the physician of the jail in which the accused was
confined, to testify to wounds observed by him on the back of the hands of the
accused, although he also testified that he had the accused removed to a room in
another part of the jail and divested of his clothing. The observation made by the
witness of the wounds on the hands and testified to by him, was in no sense a
compelling of the accused to be a witness against himself. If the removal of the clothes
had been forcible and the wounds had been thus exposed, it seems that the evidence
of their character and appearance would not have been objectionable.
In that case also (State vs. Miller) the defendant was required to place his hand upon
the wall of the house where the crime was committed, for the purpose of ascertaining
whether or not his hand would have produced the bloody print. The court said, in
discussing that question:
It was not erroneous to permit evidence of the coincidence between the hand of the
accused and the bloody prints of a hand upon the wall of the house where the crime
was committed, the hand of the accused having been placed thereon at the request of
persons who were with him in the house.
It may be added that a section of the wall containing the blood prints was produced
before the jury and the testimony of such comparison was like that held to be proper in
another case decided by the supreme court of New Jersey in the case of Johnson vs.
State (30 Vroom, N.J. Law Reports, 271). The defendant caused the prints of the
shoes to be made in the sand before the jury, and the witnesses who had observed
shoe prints in the sand at the place of the commission of the crime were permitted to
compare them with what the had observed at that place.
In that case also the clothing of the defendant was used as evidence against him.
To admit the doctrine contended for by the appellant might exclude the testimony of a
physician or a medical expert who had been appointed to make observations of a
person who plead insanity as a defense, where such medical testimony was against
necessarily use the person of the defendant for the purpose of making such
examination. (People vs. Agustin, 199 N.Y., 446.) The doctrine contended for by the
appellants would also prevent the courts from making an examination of the body of
the defendant where serious personal injuries were alleged to have been received by
him. The right of the courts in such cases to require an exhibit of the injured parts of
the body has been established by a long line of decisions.
The prohibition contained in section 5 of the Philippine Bill that a person shall not be
compelled to be a witness against himself, is simply a prohibition against legal process
to extract from the defendant's own lips, against his will, an admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the question before us,
said:
If, in other words, it (the rule) created inviolability not only for his [physical control] in
whatever form exercised, then it would be possible for a guilty person to shut himself
up in his house, with all the tools and indicia of his crime, and defy the authority of the
law to employ in evidence anything that might be obtained by forcibly overthrowing his
possession and compelling the surrender of the evidential articles a clear reductio
ad absurdum. In other words, it is not merely compulsion that is the kernel of the
privilege, . . . but testimonial compulsion. (4 Wigmore, sec. 2263.)
The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral
examination of prisoners before trial. or upon trial, for the purpose of extorting unwilling
confessions or declarations implicating them in the commission of a crime. (People vs.
Gardner, 144 N. Y., 119.)
The doctrine contended for by appellant would prohibit courts from looking at the fact
of a defendant even, for the purpose of disclosing his identity. Such an application of
the prohibition under discussion certainly could not be permitted. Such an inspection of
the bodily features by the court or by witnesses, can not violate the privilege granted
under the Philippine Bill, because it does not call upon the accused as a witness it
does not call upon the defendant for his testimonial responsibility. Mr. Wigmore says
that evidence obtained in this way from the accused, is not testimony but his body his
body itself.
As was said by Judge Lobingier:
The accused was not compelled to make any admission or answer any questions, and
the mere fact that an object found upon his body was examined seems no more to
infringe the rule invoked than would the introduction of stolen property taken from the
person of a thief.
121
The doctrine contended for by the appellant would also prohibit the sanitary
department of the Government from examining the body of persons who are supposed
to have some contagious disease.
We believe that the evidence clearly shows that the defendant was suffering from the
venereal disease, as above stated, and that through his brutal conduct said disease
was communicated to Oliva Pacomio. In a case like the present it is always difficult to
secure positive and direct proof. Such crimes as the present are generally proved by
circumstantial evidence. In cases of rape the courts of law require corroborative proof,
for the reason that such crimes are generally committed in secret. In the present case,
taking into account the number and credibility of the witnesses, their interest and
attitude on the witness stand, their manner of testifying and the general circumstances
surrounding the witnesses, including the fact that both parties were found to be
suffering from a common disease, we are of the opinion that the defendant did, on or
about the 15th of September, 1910, have such relations as above described with the
said Oliva Pacomio, which under the provisions of article 439 of the Penal Code
makes him guilty of the crime of "abusos deshonestos," and taking into consideration
the fact that the crime which the defendant committed was done in the house where
Oliva Pacomio was living, we are of the opinion that the maximum penalty of the law
should be imposed. The maximum penalty provided for by law is six years of prision
correccional. Therefore let a judgment be entered modifying the sentence of the lower
court and sentencing the defendant to be imprisoned for a period of six years of prision
correccional, and to pay the costs. So ordered.
Arellano, C.J., Torres, Mapa, Carson and Trent, JJ., concur.
G.R. No. L-25018 May 26, 1969
ARSENIO PASCUAL, JR., petitioner-appellee, vs. BOARD OF MEDICAL
EXAMINERS, respondent-appellant, SALVADOR GATBONTON and ENRIQUETA
GATBONTON, intervenors-appellants.
FERNANDO, J.:
The broad, all-embracing sweep of the self-incrimination clause,1 whenever
appropriately invoked, has been accorded due recognition by this Court ever since the
adoption of the Constitution.2 Bermudez v. Castillo,3 decided in 1937, was quite
categorical. As we there stated: "This Court is of the opinion that in order that the
constitutional provision under consideration may prove to be a real protection and not
a dead letter, it must be given a liberal and broad interpretation favorable to the person
invoking it." As phrased by Justice Laurel in his concurring opinion: "The provision, as
doubtless it was designed, would be construed with the utmost liberality in favor of the
right of the individual intended to be served." 4
Even more relevant, considering the precise point at issue, is the recent case of
Cabal v. Kapunan,5where it was held that a respondent in an administrative
proceeding under the Anti-Graft Law 6 cannot be required to take the witness stand at
the instance of the complainant. So it must be in this case, where petitioner was
sustained by the lower court in his plea that he could not be compelled to be the first
witness of the complainants, he being the party proceeded against in an administrative
charge for malpractice. That was a correct decision; we affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the
Court of First Instance of Manila an action for prohibition with prayer for preliminary
injunction against the Board of Medical Examiners, now respondent-appellant. It was
alleged therein that at the initial hearing of an administrative case7 for alleged
immorality, counsel for complainants announced that he would present as his first
witness herein petitioner-appellee, who was the respondent in such malpractice
charge. Thereupon, petitioner-appellee, through counsel, made of record his objection,
relying on the constitutional right to be exempt from being a witness against himself.
Respondent-appellant, the Board of Examiners, took note of such a plea, at the same
time stating that at the next scheduled hearing, on February 12, 1965, petitioner-
appellee would be called upon to testify as such witness, unless in the meantime he
could secure a restraining order from a competent authority.
Petitioner-appellee then alleged that in thus ruling to compel him to take the
witness stand, the Board of Examiners was guilty, at the very least, of grave abuse of
discretion for failure to respect the constitutional right against self-incrimination, the
administrative proceeding against him, which could result in forfeiture or loss of a
privilege, being quasi-criminal in character. With his assertion that he was entitled to
the relief demanded consisting of perpetually restraining the respondent Board from
compelling him to testify as witness for his adversary and his readiness or his
willingness to put a bond, he prayed for a writ of preliminary injunction and after a
hearing or trial, for a writ of prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary injunction
issue against the respondent Board commanding it to refrain from hearing or further
proceeding with such an administrative case, to await the judicial disposition of the
matter upon petitioner-appellee posting a bond in the amount of P500.00.
122
 The answer of respondent Board, while admitting the facts stressed that it could
call petitioner-appellee to the witness stand and interrogate him, the right against self-
incrimination being available only when a question calling for an incriminating answer
is asked of a witness. It further elaborated the matter in the affirmative defenses
interposed, stating that petitioner-appellee's remedy is to object once he is in the
witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary
course of law," precluding the issuance of the relief sought. Respondent Board,
therefore, denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta
Gatbonton, the complainants in the administrative case for malpractice against
petitioner-appellee, asking that they be allowed to file an answer as intervenors. Such
a motion was granted and an answer in intervention was duly filed by them on March
23, 1965 sustaining the power of respondent Board, which for them is limited to
compelling the witness to take the stand, to be distinguished, in their opinion, from the
power to compel a witness to incriminate himself. They likewise alleged that the right
against self-incrimination cannot be availed of in an administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the claim
of petitioner-appellee to be well-founded and prohibiting respondent Board "from
compelling the petitioner to act and testify as a witness for the complainant in said
investigation without his consent and against himself." Hence this appeal both by
respondent Board and intervenors, the Gatbontons. As noted at the outset, we find for
the petitioner-appellee.
1. We affirm the lower court decision on appeal as it does manifest fealty to the
principle announced by us in Cabal v. Kapunan. 8 In that proceeding for certiorari and
prohibition to annul an order of Judge Kapunan, it appeared that an administrative
charge for unexplained wealth having been filed against petitioner under the Anti-Graft
Act,9the complainant requested the investigating committee that petitioner be ordered
to take the witness stand, which request was granted. Upon petitioner's refusal to be
sworn as such witness, a charge for contempt was filed against him in the sala of
respondent Judge. He filed a motion to quash and upon its denial, he initiated this
proceeding. We found for the petitioner in accordance with the well-settled principle
that "the accused in a criminal case may refuse, not only to answer incriminatory
questions, but, also, to take the witness stand."
It was noted in the opinion penned by the present Chief Justice that while the
matter referred to an a administrative charge of unexplained wealth, with the Anti-Graft
Act authorizing the forfeiture of whatever property a public officer or employee may
acquire, manifestly out proportion to his salary and his other lawful income, there is
clearly the imposition of a penalty. The proceeding for forfeiture while administrative in
character thus possesses a criminal or penal aspect. The case before us is not
dissimilar; petitioner would be similarly disadvantaged. He could suffer not the
forfeiture of property but the revocation of his license as a medical practitioner, for
some an even greater deprivation.
To the argument that Cabal v. Kapunan could thus distinguished, it suffices to
refer to an American Supreme Court opinion highly persuasive in character. 10 In the
language of Justice Douglas: "We conclude ... that the Self-Incrimination Clause of the
Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to
lawyers as well as to other individuals, and that it should not be watered down by
imposing the dishonor of disbarment and the deprivation of a livelihood as a price for
asserting it." We reiterate that such a principle is equally applicable to a proceeding
that could possibly result in the loss of the privilege to practice the medical profession.
2. The appeal apparently proceeds on the mistaken assumption by respondent
Board and intervenors-appellants that the constitutional guarantee against self-
incrimination should be limited to allowing a witness to object to questions the answers
to which could lead to a penal liability being subsequently incurred. It is true that one
aspect of such a right, to follow the language of another American decision, 11 is the
protection against "any disclosures which the witness may reasonably apprehend
could be used in a criminal prosecution or which could lead to other evidence that
might be so used." If that were all there is then it becomes diluted.
The constitutional guarantee protects as well the right to silence. As far back as
1905, we had occasion to declare: "The accused has a perfect right to remain silent
and his silence cannot be used as a presumption of his guilt." 12 Only last year, in
Chavez v. Court of Appeals, 13 speaking through Justice Sanchez, we reaffirmed the
doctrine anew that it is the right of a defendant "to forego testimony, to remain silent,
unless he chooses to take the witness stand - with undiluted, unfettered exercise of his
own free genuine will."
Why it should be thus is not difficult to discern. The constitutional guarantee,
along with other rights granted an accused, stands for a belief that while crime should
not go unpunished and that the truth must be revealed, such desirable objectives
should not be accomplished according to means or methods offensive to the high
sense of respect accorded the human personality. More and more in line with the
democratic creed, the deference accorded an individual even those suspected of the
most heinous crimes is given due weight. To quote from Chief Justice Warren, "the
constitutional foundation underlying the privilege is the respect a government ... must
accord to the dignity and integrity of its citizens." 14
It is likewise of interest to note that while earlier decisions stressed the principle
of humanity on which this right is predicated, precluding as it does all resort to force or
compulsion, whether physical or mental, current judicial opinion places equal
emphasis on its identification with the right to privacy. Thus according to Justice
Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to
create a zone of privacy which government may not force to surrender to his
detriment." 15 So also with the observation of the late Judge Frank who spoke of "a
right to a private enclave where he may lead a private life. That right is the hallmark of
our democracy." 16 In the light of the above, it could thus clearly appear that no
possible objection could be legitimately raised against the correctness of the decision
now on appeal. We hold that in an administrative hearing against a medical
practitioner for alleged malpractice, respondent Board of Medical Examiners cannot,
consistently with the self-incrimination clause, compel the person proceeded against to
take the witness stand without his consent.
WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed.
Without pronouncement as to costs.
123
[G.R. Nos. 71208-09. August 30, 1985.]
SATURNINA GALMAN AND REYNALDO GALMAN, Petitioners, v. THE
HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE
JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE
SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN,
GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO
TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, Respondents.
[G.R. Nos. 71212-13. August 30, 1985.]
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN),
Petitioner, v. THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN.
PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT.
LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC
ANICETO ACUPIDO, Respondents.
CUEVAS, J.:
On August 21, 1983, a crime unparalleled in repercussions and ramifications was
committed inside the premises of the Manila International Airport (MIA) in Pasay City.
Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to
the country after a long sojourn abroad, was gunned down to death. The assassination
rippled shock-waves throughout the entire country which reverberated beyond the
territorial confines of this Republic. The after-shocks stunned the nation even more as
this ramified to all aspects of Philippine political, economic and social life
To determine the facts and circumstances surrounding the killing and to allow a
free, unlimited and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886
was promulgated creating an ad hoc Fact Finding Board which later became more
popularly known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D.
1886, the Board conducted public hearings wherein various witnesses appeared and
testified and/or produced documentary and other evidence either in obedience to a
subpoena or in response to an invitation issued by the Board. Among the witnesses
who appeared, testified and produced evidence before the Board were the herein
private respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt.
Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt.
Prospero Bona and AIC Aniceto Acupido. 4
Upon termination of the investigation, two (2) reports were submitted to His
Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice
Corazon Juliano Agrava; and another one, jointly authored by the other members of
the Board namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos
and Hon. Ernesto Herrera. The reports were thereafter referred and turned over to the
TANODBAYAN for appropriate action. After conducting the necessary preliminary
investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2)
Informations for MURDER one for the killing of Sen. Benigno S. Aquino which was
docketed as Criminal Case No. 10010 and another, Criminal Case No, 10011, for the
killing of Rolando Galman, who was found dead on the airport tarmac not far from the
prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private
respondents were charged as accessories, along with several principals, and one
accomplice.
Upon arraignment, all the accused, including the herein private respondents
pleaded NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the prosecution
represented by the Office of the petitioner TANODBAYAN, marked and thereafter
offered as part of its evidence, the individual testimonies of private respondents before
the Agrava Board 6 Private respondents, through their respective counsel objected to
the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to
Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence
against him in the above-cases" 7 contending that its admission will be in derogation of
his constitutional right against self-incrimination and violative of the immunity granted
by P. Dentitled. 1886. He prayed that his aforesaid testimony be rejected as evidence
for the prosecution. Major Gen. Olivas and the rest of the other private respondents
likewise filed separate motions to exclude their respective individual testimonies
invoking the same ground. 8 Petitioner TANODBAYAN opposed said motions
contending that the immunity relied upon by the private respondents in support of their
motions to exclude their respective testimonies, was not available to them because of
their failure to invoke their right against self-incrimination before the ad hoc Fact
Finding Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the
private respondents to submit their respective memorandum on the issue after which
said motions will be considered submitted for resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and having
been required to make its offer of evidence in writing, respondent SANDIGANBAYAN,
without the pending motions for exclusion being resolved, issued a Resolution
directing that by agreement of the parties, the pending motions for exclusion and the
opposition thereto, together with the memorandum in support thereof, as well as the
legal issues and arguments, raised therein are to be considered jointly in the Courts
Resolution on the prosecutions formal offer of exhibits and other documentary
evidences. 11 On June 3, 1985, the prosecution made a written "Formal Offer of
Evidence" which includes, among others, the testimonies of private respondents and
other evidences produced by them before the Board, all of which have been previously
marked in the course of the trial. 12
All the private respondents objected to the prosecutions formal offer of evidence
on the same ground relied upon by them in their respective motion for exclusion.
On June 13,1985, respondent SANDIGANBAYAN issued a Resolution, now
assailed in these two (2) petitions, admitting all the evidences offered by the
prosecution except the testimonies and/or other evidence produced by the private
respondents in view of the immunity granted by P.D. 1886. 13
Petitioners motion for the reconsideration of the said Resolution having been
DENIED, they now come before Us by way of Certiorari 14 praying for the amendment
and/or setting aside of the challenged Resolution on the ground that it was issued
without jurisdiction and or with grave abuse of discretion amounting to lack of
jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando
Galman, also filed a separate petition for Certiorari 15 on the same ground. Having
arisen from the same factual beginnings and raising practically identical issues, the
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two (2) petitioners were consolidated and will therefore be jointly dealt with and
resolved in this Decision.
The crux of the instant controversy is the admissibility in evidence of the
testimonies given by the eight (8) private respondents who did not invoke their rights
against self-incrimination before the Agrava Board.
It is the submission of the prosecution, now represented by the petitioner
TANODBAYAN, that said testimonies are admissible against the private respondents,
respectively, because of the latters failure to invoke before the Agrava Board the
immunity granted by P.D. 1886. Since private respondents did not invoke said
privilege, the immunity did not attach. Petitioners went further by contending that such
failure to claim said constitutional privilege amounts to a waiver thereof. 16 The private
respondents, on the other hand, claim that notwithstanding failure to set up the
privilege against self-incrimination before the Agrava Board, said evidences cannot be
used against them as mandated by Section 5 of the said P.D. 1886. They contend that
without the immunity provided for by the second clause of Section 5, P.D. 1886, the
legal compulsion imposed by the first clause of the same Section would suffer from
constitutional infirmity for being violative of the witness right against self-incrimination.
17 Thus, the protagonists are locked in horns on the effect and legal significance of
failure to set up the privilege against self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court has not
been previously called upon to rule on issues involving immunity statutes. The relative
novelty of the question coupled with the extraordinary circumstance that had
precipitated the same did nothing to case the burden of laying down the criteria upon
which this Court will henceforth build future jurisprudence on a heretofore unexplored
area of judicial inquiry. In carrying out this monumental task, however, We shall be
guided, as always, by the constitution and existing laws.
The Agrava Board, 18 came into existence in response to a popular public clamor
that an impartial and independent body, instead of any ordinary police agency, be
charged with the task of conducting the investigation. The then early distortions and
exaggerations, both in foreign and local media, relative to the probable motive behind
the assassination and the person or persons responsible for or involved in the
assassination hastened its creation and heavily contributed to its early formation. 19
Although referred to and designated as a mere Fact Finding Board, the Board is in
truth and in fact, and to all legal intents and purposes, an entity charged, not only with
the function of determining the facts and circumstances surrounding the killing, but
more importantly, the determination of the person or persons criminally responsible
therefor so that they may be brought before the bar of justice. For indeed, what good
will it be to the entire nation and the more than 50 million Filipinos to know the facts
and circumstances of the killing if the culprit or culprits will nevertheless not be dealt
with criminally? This purpose is implicit from Section 12 of the said Presidential
Decree, the pertinent portion of which provides
"SECTION 12. The findings of the Board shall be made public. Should the
findings warrant the prosecution of any person the Board may initiate the filing
of proper complaint with the appropriate government agency. . . ..(Emphasis
supplied).
The investigation therefor is also geared, as any other similar investigation of its
sort, to the ascertainment and/or determination of the culprit or culprits, their
consequent prosecution and ultimately, their conviction. And as safeguard, the P.D.
guarantees "any person called to testify before the Board the right to counsel at any
stage of the proceedings." 20 Considering the foregoing environmental settings, it
cannot be denied that in the course of receiving evidence, persons summoned to
testify will include not merely plain witnesses but also those suspected as authors and
co-participants in the tragic killing. And when suspects are summoned and called to
testify and/or produce evidence, the situation is one where the person testifying or
producing evidence is undergoing investigation for the commission of an offense and
not merely in order to shed light on the facts and surrounding circumstances of the
assassination, but more importantly, to determine the character and extent of his
participation therein.
Among this class of witnesses were the herein private respondents, suspects in the
said assassination, all of whom except Generals Ver and Olivas, were detained (under
technical arrest) at the time they were summoned and gave their testimonies before
the Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them
the right to remain silent. They were compelled to testify or be witnesses against
themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the
witness stand, testify or produce evidence, under pain of contempt if they failed or
refused to do so, 21 The jeopardy of being placed behind prison bars even before
conviction dangled before their very eyes. Similarly, they cannot invoke the right not to
be a witness against themselves, both of which are sacrosantly enshrined and
protected by our fundamental law. 21-A Both these constitutional rights to remain silent
and not to be compelled to be a witness against himself) were right away totally
foreclosed by P.D. 1886. And yet when they so testified and produced evidence as
ordered, they were not immune from prosecution by reason of the testimony given by
them.
Of course, it may be argued is not the right to remain silent available only to a
person undergoing custodial interrogation? We find no categorical statement in the
constitutional provision on the matter which reads:
". . . Any person under investigation for the commission of an offense shall
have the right to remain and to counsel, and to be informed of such right.." . .
22 (Emphasis supplied).
Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence
23 on this specific portion of the subject provision. In all these cases, it has been
categorically declared that a person detained for the commission of an offense
undergoing investigation has a right to be informed of his right to remain silent, to
counsel, and to an admonition that any and all statements to be given by him may be
used against him. Significantly however, there has been no pronouncement in any of
these cases nor in any other that a person similarly undergoing investigation for the
commission of an offense, if not detained, is not entitled to the constitutional
admonition mandated by said Section 20, Art. IV of the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term
"custodial" by having it inserted between the words "under" and investigation", as in
fact the sentence opens with the phrase "any person" goes to prove that they did not
adopt in toto the entire fabric of the Miranda doctrine. 24 Neither are we impressed by
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petitioners contention that the use of the word "confession" in the last sentence of said
Section 20, Article 4 connotes the idea that it applies only to police investigation, for
although the word "confession" is used, the protection covers not only "confessions"
but also "admissions" made in violation of this section. They are inadmissible against
the source of the confession or admission and against third person.
It is true a person in custody undergoing investigation labors under a more
formidable ordeal and graver trying conditions than one who is at liberty while being
investigated. But the common denominator in both which is sought to be avoided is
the evil of extorting from the very mouth of the person undergoing interrogation for the
commission of an offense, the very evidence with which to prosecute and thereafter
convict him. This is the lamentable situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of the
military contingent that escorted Sen. Aquino while disembarking from the plane that
brought him home to Manila on that fateful day. Being at the scene of the crime as
such, they were among the first line of suspects in the subject assassination. General
Ver on the other hand, being the highest military authority of his co-petitioners labored
under the same suspicion and so with General Olivas, the first designated investigator
of the tragedy, but whom others suspected, felt and believed to have bungled the case.
The papers, especially the foreign media, and rumors from ugly-wagging tongues, all
point to them as having, in one way or another participated or have something to do, in
the alleged conspiracy that brought about the assassination. Could there still be any
doubt then that their being asked to testify, was to determine whether they were really
conspirators and if so, the extent of their participation in the said conspiracy? It is too
taxing upon ones credulity to believe that private respondents being called to the
witness stand was merely to elicit from them facts and circumstances surrounding the
tragedy, which was already so abundantly supplied by other ordinary witnesses who
had testified earlier. In fact, the records show that Generals Ver and Olivas were
among the last witnesses called by the Agrava Board. The subject matter dealt with
and the line of questioning as shown by the transcript of their testimonies before the
Agrava Board, indubitably evinced purposes other than merely eliciting and
determining the so-called surrounding facts and circumstances of the assassination. In
the light of the examination reflected by the record, it is not far-fetched to conclude that
they were called to the stand to determine their probable involvement in the crime
being investigated. Yet they have not been informed or at the very least even warned
while so testifying, even at that particular stage of their testimonies, of their right to
remain silent and that any statement given by them may be used against them. If the
investigation was conducted, say by the PC, NBI or by other police agency, all the
herein private respondents could not have been compelled to give any statement
whether incriminatory or exculpatory. Not only that. They are also entitled to be
admonished of their constitutional right to remain silent, to counsel, and be informed
that any and all statements given by them may be used against them. Did they lose
their aforesaid constitutional rights simply because the investigation was by the Agrava
Board and not by any police investigator, officer or agency? True, they continued
testifying. May that be construed as a waiver of their rights to remain silent and not to
be compelled to be a witness against themselves? The answer is yes, if they have the
option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the
awesome contempt power of the Board to punish any refusal to testify or produce
evidence, We are not persuaded that when they testified, they voluntarily waived their
constitutional rights not to be compelled to be a witness against themselves much less
their right to remain silent.
"Compulsion as it is understood here does not necessarily connote the use
of violence; it may be the product of unintentional statements Pressure which
operates to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion tending to force testimony from the unwilling lips
of the defendant." 26
Similarly, in the case of Louis J. Lefkowitz v. Russel Turley 27 citing Garrity v. New
Jersey 28 where certain police officers summoned to an inquiry being conducted by
the Attorney General involving the fixing of traffic tickets were asked questions
following a warning that if they did not answer they would be removed from office and
that anything they said might be used against them in any criminal proceeding, and the
questions were answered, the answers given cannot over their objection be later used
in their prosecutions for conspiracy. The United States Supreme Court went further in
holding that:
"the protection of the individuals under the Fourteenth Amendment against
coerced statements prohibits use in subsequent proceedings of statements
obtained under threat or removal from office, and that it extends to all, whether
they are policemen or other members of the body politic. 385 US at 500,17 L
Ed. 562. The Court also held that in the context of threats of removal from
office the act of responding to interrogation was not voluntary and was not an
effective waiver of the privilege against self-incrimination."
To buttress their precarious stand and breathe life into a seemingly hopeless
cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the
"right not to be compelled to be a witness against himself" applies only in favor of an
accused in a criminal case. Hence, it may not be invoked by any of the herein private
respondents before the Agrava Board. The Cabal v. Kapunan doctrine militates very
heavily against this theory. Said case is not a criminal case as its title very clearly
indicates. It is not People v. Cabal nor a prosecution for a criminal offense. And yet,
when Cabal refused to take the stand, to be sworn and to testify upon being called as
a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this
Court sustained Cabals plea that for him to be compelled to testify will be in violation
of his right against self-incrimination. We did not therein state that since he is not an
accused and the case is not a criminal case, Cabal cannot refuse to take the witness
stand and testify, and that he can invoke his right against self-incrimination only when
a question which tends to elicit an answer that will incriminate him is profounded to
him. Clearly then, it is not the character of the suit involved but the nature of the
proceedings that controls. The privilege has consistently been held to extend to all
proceedings sanctioned by law and to all cases in which punishment is sought to be
visited upon a witness, whether a party or not. 29 If in a mere forfeiture case where
only property rights were involved, "the right not to be compelled to be a witness
against himself" is secured in favor of the defendant, then with more reason it cannot
be denied to a person facing investigation before a Fact Finding Board where his life
and liberty, by reason of the statements to be given by him, hang on the balance.
Further enlightenment on the subject can be found in the historical background of this
constitutional provision against self-incrimination. The privilege against self-
incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the
126
Philippines, the same principle obtains as a direct result of American influence. At first,
the provision in our organic laws were similar to the Constitution of the United States
and was as follows:
"That no person shall be . . . compelled in a criminal case to be a witness
against himself." 30
As now worded, Section 20 of Article IV reads:
"No person shall be compelled to be a witness against himself."
The deletion of the phrase "in a criminal case" connotes no other import except to
make said provision also applicable to cases other than criminal. Decidedly then, the
right "not to be compelled to testify against himself" applies to the herein private
respondents notwithstanding that the proceedings before the Agrava Board is not, in
its strictest sense, a criminal case.
No doubt, the private respondents were not merely denied the afore-discussed
sacred constitutional rights, but also the right to "due process" which is fundamental
fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced
this Court, the former Chief Justice Enrique M. Fernando, due process
". . . is responsiveness to the supremacy of reason, obedience to the
dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase
Cardozo, must not outrun the bounds of reason and result m sheer oppression.
Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly, it has been identified as freedom from arbitrariness.
It is the embodiment of the sporting idea of fair play (Frankfurter, Mr. Justice
Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty to those
strivings for justice and judges the act of officialdom of whatever branch in the
light of reason drawn from considerations of fairness that reflect (democratic)
traditions of legal and political thought. (Frankfurter, Hannah v. Larche, 1960,
363 US 20, at 487). It is not a narrow or technical conception with fixed
content unrelated to time, place and circumstances. (Cafeteria Workers v.
McEhroy, 1961, 367 US 1230) Decisions based on such a clause requiring a
close and perceptive inquiry into fundamental principles of our society.
(Bartkus v. Ilhmois, 1959, 359 US 121). Questions of due process are not to be
treated narrowly or pedantically in slavery to form or phrases. (Pearson v.
McGraw, 1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments,
manifestations and admissions of both counsel, failed to reveal adherence to and
compliance with due process. The manner in which the testimonies were taken from
private respondents fall short of the constitutional standards both under the DUE
PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV.
In the face of such grave constitutional infirmities, the individual testimonies of private
respondents cannot be admitted against them in any criminal proceeding. This is true
regardless of absence of claim of constitutional privilege or of the presence of a grant
of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim
to the availability to private respondents of the immunity provided for in Section 5, P.D.
1886 which issue was squarely raised and extensively discussed in the pleadings and
oral arguments of the parties.
Immunity statutes may be generally classified into two: one, which grants "use
immunity" ; and the other, which grants what is known as "transactional immunity." The
distinction between the two is as follows: "Use immunity" prohibits use of witness
compelled testimony and its fruits in any manner in connection with the criminal
prosecution of the witness. On the other hand, "transactional immunity" grants
immunity to the witness from prosecution for an offense to which his compelled
testimony relates. 32 Examining Presidential Decree 1886, more specifically Section 5
thereof, which reads:
"SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his testimony
or the evidence required of him may tend to incriminate him or subject him to
penalty or forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or thing
concerning which he is compelled, after having invoked his privilege against
self-incrimination, to testify or produce evidence, except that such individual so
testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or removal
from office." (Emphasis supplied).
it is beyond dispute that said law belongs to the first type of immunity statutes. It
grants merely immunity from use of any statement given before the Board, but not
immunity from prosecution by reason or on the basis thereof. Merely testifying and/or
producing evidence do not render the witness immuned from prosecution
notwithstanding his invocation of the right against self-incrimination. He is merely
saved from the use against him of such statement and nothing more. Stated
otherwise . . . . he still runs the risk of being prosecuted even if he sets up his right
against self-incrimination. The dictates of fair play, which is the hallmark of due
process, demands that private respondents should have been informed of their rights
to remain silent and warned that any and all statements to be given by them may be
used against them. This, they were denied, under the pretense that they are not
entitled to it and that the Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon
Us by the petitioners that the right against self-incrimination must be invoked
before the Board in order to prevent use of any given statement against the testifying
witness in a subsequent criminal prosecution. A literal interpretation fashioned upon Us
is repugnant to Article IV, Section 20 of the Constitution, which is the first test of
admissibility. It reads:
"No person shall be compelled to be a witness against himself. Any person
under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force,
violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence." (Emphasis supplied).
The aforequoted provision renders inadmissible any confession obtained in
violation thereof. As herein earlier discussed, this exclusionary rule applies not only to
confessions but also to admissions, 33 whether made by a witness in any proceeding
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or by an accused in a criminal proceeding or any person under investigation for the rights of this Court, Mr. Justice Claudio Teehankee, in the case of People v. Manalang,
commission of an offense. 38 and we quote:
Any interpretation of a statute which will give it a meaning in conflict with the "I am completely conscious of the need for a balancing of the interests of
Constitution must be avoided. So much so that if two or more constructions or society with the rights and freedoms of the individuals. I have advocated the
interpretations could possibly be resorted to, then that one which will avoid balancing-of-interests rule in all situations which call for an appraisal of the
unconstitutionality must be adopted even though it may be necessary for this purpose interplay of conflicting interests of consequential dimensions. But I reject any
to disregard the more usual and apparent import of the language used. 34 To save the proposition that would blindly uphold the interests of society at the sacrifice of
statute from a declaration of unconstitutionality it must be given a reasonable the dignity of any human being." (Emphasis supplied).
construction that will bring it within the fundamental law. 35 Apparent conflict between Lest we be misunderstood, let it be known that we are not by this disposition
two clauses should be harmonized. 36 passing upon the guilt or innocence of the herein private respondents an issue
But a literal application of a requirement of a claim of the privilege against self- which is before the Sandiganbayan. We are merely resolving a question of law and the
incrimination as a condition sine qua non to the grant of immunity presupposes that pronouncement herein made applies to all similarly situated, irrespective of ones rank
from a laymans point of view, he has the option to refuse to answer questions and and status in society.
therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant
by imposing sanctions upon its exercise, thus: petitions without merit, same are DISMISSED. No pronouncement as to costs.
"SEC. 4. The Board may hold any person in direct or indirect contempt, and SO ORDERED.
impose appropriate penalties therefor.
A person guilty of . . . including . . . refusal to be sworn or to answer as a
witness or to subscribe to an affidavit or deposition when lawfully required to do
so may be summarily adjudged in direct contempt by the Board. . . ."
Such threat of punishment for making a claim of the privilege leaves the witness no
choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5.
The absurdity of such application is apparent Sec. 5 requires a claim which it,
however, forecloses under threat of contempt proceedings against anyone who makes
such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886
viewed in the light of the sanctions provided in Section 4, infringes upon the witness
right against self-incrimination. As a rule, such infringement of the constitutional right
renders inoperative the testimonial compulsion, meaning, the witness cannot be
compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is
offered. 37 Hence, under the oppressive compulsion of P.D. 1886, immunity must in
fact be offered to the witness before he can be required to answer, so as to safeguard
his sacred constitutional right. But in this case, the compulsion has already produced
its desired results the private respondents had all testified without offer of immunity.
Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been
offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal
to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled
thereby are deemed immunized under Section 5 of the same law. The applicability of
the immunity granted by P.D. 1886 cannot be made to depend on a claim of the
privilege against self-incrimination which the same law practically strips away from the
witness.
With the stand we take on the issue before Us, and considering the temper of the
times, we run the risk of being consigned to unpopularity. Conscious as we are of, but
undaunted by, the frightening consequences that hover before Us, we have Strictly
adhered to the Constitution in upholding the rule of law finding solace in the view very
aptly articulated by that well-known civil libertarian and admired defender of human

128
G.R. No. L-28025 December 16, 1970
DAVID ACEBEDO Y DALMAN, Petitioner, vs. HON. MALCOLM G. SARMIENTO, as
Judge of the Court of First Instance of Pampanga and THE PROV. FISCAL OF
PAMPANGA, Respondents.
FERNANDO, J.:
This Court not so long ago reaffirmed the doctrine that where a dismissal of a
criminal prosecution amounts to an acquittal, even if arising from a motion presented
by the accused, the ban on being twice put in jeopardy may be invoked, especially
where such dismissal was predicated on the right to a speedy trial. 1The specific
question then that this certiorari and prohibition proceeding presents is whether on the
undisputed facts, an order of dismissal given in open court by respondent Judge falls
within the operation of the above principle, precluding its reconsideration later as the
defense of double jeopardy would be available. Here respondent Judge did reconsider,
and his actuation is now assailed as a grave abuse of discretion. As will be made
apparent, petitioner has the law on his side. The writs should be granted.
It was shown that on August 3, 1959, respondent Provincial Fiscal filed in the Court
of First Instance of Pampanga a criminal information for damage to property through
reckless imprudence against petitioner and a certain Chi Chan Tan. As there were no
further proceedings in the meantime, petitioner on May 19, 1965 moved to dismiss the
criminal charge. Respondent Judge was not in agreement as shown by his order of
denial of July 10, 1965. Then, after two more years, came the trial with the
complainant having testified on direct examination but not having as yet been fully
cross-examined. At the continuation of the trial set for June 7, 1967 such witness did
not show up. The provincial fiscal moved for postponement. Counsel for petitioner,
however, not only objected but sought the dismissal of the case based on the right of
the accused to speedy trial. Respondent Judge this time acceded, but would likewise
base his order of dismissal, orally given, on the cross-examination of complainant not
having started as yet. Later that same day, respondent Judge did reconsider the order
and reinstated the case, his action being due to its being shown that the cross-
examination of the complainant had already started.
On the above facts, there can be no dispute as to the applicable law. It is not to be
lost sight of that the petition on its face had more than its fair share of plausibility, thus
eliciting an affirmative response to the plea for a writ of preliminary injunction, duly
issued by this Court. For it was all too evident that petitioner could rely on his
constitutional right to a speedy trial. For more than six years the threat of his being
subjected to a penal liability did hang over his head, with the prosecution failing to take
any step to have the matter heard. He did ask that the case be dismissed, but
respondent Judge turned him down. When the trial did at long last take place after two
more years and again postponement was sought as the complainant was not available
for cross- examination, petitioner, as could have been expected, did again seek to put
an end to his travail with a motion for dismissal grounded once more on the undeniable
fact that he was not accorded the speedy trial that was his due. This time respondent
Judge was quite receptive - and about time too. The order of dismissal given in open
court had then the effect of an acquittal. For the respondent Judge to give vent to a
change of heart with his reconsideration was to subject petitioner to the risk of being
put in jeopardy once more. Nor could respondent Judge's allegation that he could do
so as he acted under a misapprehension be impressed with the quality of
persuasiveness. The decisive fact was the absence of that speedy trial guaranteed by
the Constitution. This petition then, to repeat, possesses merit.
1. The right to a speedy trial means one free from vexatious, capricious and
oppressive delays, its salutary objective being to assure that an innocent person may
be free from the anxiety and expense of a court litigation or, if otherwise, of having his
guilt determined within the shortest possible time compatible with the presentation and
consideration of whatever legitimate defense he may interpose. 2The remedy in the
event of a non-observance of this right is by habeas corpus if the accused were
restrained of his liberty, or by certiorari, prohibition, or mandamus for the final dismissal
of the case.
In the first Supreme Court decision after the Constitution took effect, an appeal
from a judgment of conviction, it was shown that the criminal case had been dragging
on for almost five years. When the trial did finally take place, it was tainted by
irregularities. While ordinarily the remedy would have been to remand the case again
for a new trial, the appealed decision of conviction was set aside and the accused
acquitted. Such a judgment was called for according to the opinion penned by Justice
Laurel, if this constitutional right were to be accorded respect and deference. Thus:
"The Government should be the last to set an example of delay and oppression in the
administration of justice and it is the moral and legal obligation of this court to see that
the criminal proceedings against the accused came to an end and that they be
immediately discharged from the custody of the law."
Conformably to the above ruling as well as the earlier case of Conde v. Rivera,
5the dismissal of a second information for frustrated homicide was ordered by the
Supreme Court on a showing that the first information had been dismissed after a
lapse of one year and seven months from the time the original complaint was filed
during which time on the three occasions the case was set for trial, the private
prosecutor twice asked for postponements and once the trial court itself cancelled the
entire calendar for the month it was supposed to have been heard. As pointed out in
such decision: "The right of the accused to have a speedy trial is violated not only
when unjustified postponements of the trial are asked for and secured, but also when,
without good cause or justifiable motive, a long period of time is allowed to elapse
without having his case tried." 6 It did not matter that in this case the postponements
were sought and obtained by the private prosecution, although with the consent and
approval of the fiscal. Nor was there a waiver and abandonment of the right to a
speedy trial when there was a failure on the part of the accused to urge that the case
be heard. "Such a waiver or abandonment may be presumed only when the
postponement of the trial has been sought and obtained [by him]". 7 A finding that
there was an infringement of this right was predicated on an accused having been
criminally prosecuted for an alleged abuse of chastity in a justice of the peace court as
a result of which he was arrested three times, each time having to post a bond for his
provisional liberty. Mandamus to compel the trial judge to dismiss the case was under
the circumstances the appropriate remedy. 8
In Mercado v. Santos, 9 the second occasion Justice Laurel had to write the
opinion for the Supreme Court in a case of this nature, the transgression of this
constitutional mandate came about with petitioner having in a space of twenty months
been arrested four times on the charge of falsifying his deceased wife's will, the first
two complaints having been subsequently withdrawn only to be refiled a third time and
thereafter dismissed after due investigation by the justice of the peace. Undeterred the
129
provincial fiscal filed a motion for reinvestigation favorably acted on by the Court of appear on the date of trial.' (Emphasis supplied.)" 17There is no escaping the
First Instance which finally ordered that the case be heard on the merits. At this stage conclusion then that petitioner here has clearly made out a case of an acquittal arising
the accused moved to dismiss but was rebuffed. He sought the aid of the Court of from the order of dismissal given in open court.
Appeals in a petition for certiorari but did not prevail. It was then that the matter was 3. Respondent Judge would rely on Cabarroguis v. San Diego 18to lend support to
elevated to the Supreme Court which reversed the Court of Appeals, the accused the reconsideration of his order of dismissal. The case is not applicable; the factual
"being entitled to have the criminal proceedings against him quashed." It was stressed setting is different. The order of dismissal set aside in that case arose from the belief of
in Justice Laurel's opinion: "An accused person is entitled to a trial at the earliest the court that the crime of estafa was not committed as the liability was civil in
opportunity. ... He cannot be oppressed by delaying the commencement of trial for an character. At no stage then was there a plea that the accused was denied his right to a
unreasonable length of time. If the proceedings pending trial are deferred, the trial speedy trial. The reconsideration was granted as there was documentary evidence to
itself is necessarily delayed. It is not to be supposed, of course, that the Constitution show that the intention to defraud on the part of the accused could be shown. Under
intends to remove from the prosecution every reasonable opportunity to prepare for such circumstances, this Court saw no grave abuse of discretion in the actuation of the
trial. Impossibilities cannot be expected or extraordinary efforts required on the part of trial judge. To repeat, the proceeding now before this Court is anything but that.
the prosecutor or the court." 10The opinion likewise considered as not decisive the fact Petitioner not once but twice did seek to have the prosecution for damage to property
that the provincial fiscal did not intervene until an information was filed charging the against him terminated as the matter was pending for at least six years, the first time
accused with the crime of falsification the third time. Thus: "The Constitution does not he sought to put an end to it. When at last, the trial stage was reached, the
say that the right to a speedy trial may be availed of only where the prosecution for complaining witness testified on direct examination but made no appearance when his
crime is commenced and undertaken by the fiscal. It does not exclude from its cross-examination was to be continued. A clear case of a denial of the right to a
operation cases commenced by private individuals. Where once a person is speedy trial was thus made out. There was an order of dismissal that amounted to an
prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the acquittal. No reconsideration could therefore be had without offending the provision on
offense or the manner in which it is authorized to be commenced." double jeopardy.
2. More specifically, this Court has consistently adhered to the view that a dismissal WHEREFORE, the writ of certiorari is granted annulling the order of respondent
based on the denial of the right to a speedy trial amounts to an acquittal. Necessarily, Judge of June 7, 1967 reconsidering his order of dismissal and reinstating the criminal
any further attempt at continuing the prosecution or starting a new one would fall within case against petitioner. The writ of prohibition is likewise granted, respondent Judge
the prohibition against an accused being twice put in jeopardy. The extensive opinion and respondent Provincial Fiscal of Pampanga being restrained and precluded from
of Justice Castro in People v. Obsania noted earlier made reference to four Philippine continuing with this case against petitioner, now adjudged definitely dismissed. The
decisions, People v. Diaz, 12People v. Abano, 13People v. Robles, 14and People v. writ of preliminary injunction issued is made permanent.
Cloribel. 15In all of the above cases, this Court left no doubt that a dismissal of the
case, though at the instance of the defendant grounded on the disregard of his right to
a speedy trial was tantamount to an acquittal. In People v. Diaz, it was shown that the
case was set for hearing twice and the prosecution without asking for postponement or
giving any explanation failed to appear. In People v. Abano, the facts disclosed that
there were three postponements. Thereafter, at the time the resumption of the trial was
scheduled, the complaining witness as in this case was absent; this Court held that
respondent Judge was justified in dismissing the case upon motion of the defense and
that the annulment or setting aside of the order of dismissal would place the accused
twice in jeopardy of punishment for the same offense. People v. Robles likewise
presented a picture of witnesses for the prosecution not being available, with the lower
court after having transferred the hearings on several occasions denying the last plea
for postponement and dismissing the case. Such order of dismissal, according to this
Court "is not provisional in character but one which is tantamount to acquittal that
would bar further prosecution of the accused for the same offense." 16This is a
summary of the Cloribel case as set forth in the above opinion of Justice Castro: "In
Cloribel, the case dragged for three years and eleven months, that is, from September
27, 1958 when the information was filed to August 15, 1962 when it was called for trial,
after numerous postponements, mostly at the instance of the prosecution. On the latter
date, the prosecution failed to appear for trial, and upon motion of defendants, the
case was dismissed. This Court held 'that the dismissal here complained of was not
truly a 'dismissal' but an acquittal. For it was entered upon the defendants' insistense
on their constitutional right to speedy trial and by reason of the prosecution's failure to
130
[G.R. NO. 173319 : December 4, 2009]
FEDERICO MIGUEL OLBES, Petitioner, v. HON. DANILO A. BUEMIO, in his capacity
as pairing presiding judge of Branch 22 of the Metropolitan Trial Court of Manila,
PEOPLE OF THE PHILIPPINES, SAMIR MUHSEN and ROWENA MUHSEN,
Respondents.
CARPIO MORALES, J.:
On complaint of Samir and Rowena Muhsen, Federico Miguel Olbes (petitioner)
was indicted for Grave Coercion before the Metropolitan Trial Court (MeTC) of Manila
by Information dated June 28, 2002 which was raffled to Branch 22 thereof. On
October 28, 2002, petitioner posted bail and was released.
Denying petitioners motion to defer or suspend his arraignment in light of his
pending petition for review before the Department of Justice from the City Fiscals
Resolution finding probable cause to hale him into court, Judge Hipolito dela Vega
proceeded with petitioners arraignment on February 12, 2003 in which he pleaded not
guilty to the charge.[2] Pre-trial was thereupon set to May 28, 2003 which was,
however, declared a non-working day due to the occurrence of typhoon Chedeng. The
pre-trial was thus reset to October 23, 2003.
At the scheduled pre-trial on October 23, 2003, petitioner failed to appear,
prompting the trial court to issue a warrant for his arrest, which warrant was, however,
later recalled on discovery that neither petitioner nor his counsel was notified of said
schedule. Pre-trial was again reset to January 21, 2004.
Before the scheduled pre-trial on January 21, 2004 or on November 3, 2003,
petitioner filed a Motion to Dismiss[5] the Information on the ground of violation of his
right to a speedy trial under Republic Act No. 8493[6] or the Speedy Trial Act of 1998
and Supreme Court Circular (SCC) No. 38-98.He argued that considering that [he] was
not - without any fault on his part - brought to trial within 80 days from the date he was
arraigned, this case should be dismissed pursuant to Rule 119, Section 9[8] in relation
to Rule 119, Section 6 of the Rules.
The trial court, through pairing Judge Danilo A. Buemio (respondent judge), denied
petitioners Motion to Dismiss by Order of December 5, 2003, holding that petitioner
played a big part in the delay of the case, and that technical rules of procedure were
meant to secure, not override, substantial justice.
Petitioners Motion for Reconsideration of the December 5, 2003 Order was denied
by Order[11] of March 3, 2004 after respondent judge noted that during petitioners
arraignment on February 12, 2003, he interposed no objection to the setting of the pre-
trial to May 28, 2003. Besides, respondent judge held, strict compliance with the
Speedy Trial Act was improbable, given the volume of cases being filed with the
MeTC. Additionally respondent judge held that the term speedy trial as applied in
criminal cases is a relative term such that the trial and disposition of cases depended
on several factors including the availability of counsel, witnesses and prosecutor, and
weather conditions.
Petitioner challenged respondent judges orders via certiorari and prohibition before
the Regional Trial Court (RTC) of Manila, alleging that not only was he (petitioner) not
brought to trial within 80 days from the date of his arraignment as required under
Section 6, Rule 119, but the prosecution had failed to establish the existence of any of
the time exclusions provided under Section 3[12] of the same Rule to excuse its failure
to bring him to trial within the 80-day period.
By Decision[13] of January 31, 2006, the RTC denied the petition, holding that
Section 9 of Rule 119 of the Rules of Court does not call for the automatic dismissal of
a case just because trial has not commenced within 80 days from arraignment; that the
proceedings before the MeTC were not attended by vexatious, capricious and
oppressive delays; and that the concept of a speedy trial is not a mere question of
numbers that could be computed in terms of years, months or days but is understood
according to the peculiar circumstances of each case, citing SPO1 Sumbang, Jr. v.
Gen. Court Martial PRO-Region 6.[14]
The RTC further held that in determining whether petitioners right to speedy trial
was violated,[15] the circumstances that respondent judge was the pairing judge of Br.
22 of the MeTC who may be assumed also [to] preside over his own regular court and
devotes limited time to his pairing court and that first level courts in Manila have an
excessive load of cases should also be taken into consideration.
His motion for reconsideration having been denied by the RTC,[16] petitioner
lodged the present petition for review which, in the main, faults the RTC
I
. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT COMPLIANCE
WITH RULE 119, SECTION 9 OF THE RULES IS NOT MANDATORY. THE RIGHT OF
AN ACCUSED TO A SPEEDY TRIAL IS A SUBSTANTIVE RIGHT THAT CANNOT BE
DISREGARDED.
II
. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT THE
ENUMERATION OF ALLOWABLE TIME EXCLUSIONS UNDER RULE 119, SECTION
3 IS NOT EXCLUSIVE, AND THAT THE FAILURE TO BRING PETITIONER TO TRIAL
WITHIN THE PERIOD PROVIDED UNDER RULE 119, SECTION 6 WAS JUSTIFIED.
x x x x,[17]
errors which raise a question of law.
Petitioner argues that his right to speedy trial is a substantive right and that,
contrary to the RTC ruling, Section 9 of Rule 119 is mandatory in character, having
been taken from SCC No. 38-98, strict compliance with which is urged to remove any
attempt on the part of judges to exercise discretion with respect to the time frame for
conducting the trial of an accused; that the last paragraph of said Section 9 clearly
indicates that it is the right of an accused to move for dismissal of the Information
should the prosecution fail to prove the existence of the time exclusions under Section
3 of Rule 119; and that the enumeration of the allowable time exclusions under Section
3 is exclusive, hence, the RTC erred in considering the excessive caseload of
respondent judge, as a mere pairing judge, to be an allowable time exclusion under
the Rules.
In its Comment,[18] the People, through the Office of the Solicitor General (OSG),
counters that speed alone is not the chief objective of a trial such that mere assertion
of a violation of the right to speedy trial does not necessarily result in the automatic
dismissal of an Information; that the time exclusions referred to in paragraphs (a) to (f)
of Section 3, Rule 119 are not exclusive and admit of other exceptions; that petitioner
131
himself contributed to the delay in the proceedings when he filed a frivolous motion to
suspend proceedings and failed to appear during the scheduled pre-trial; and that the
RTC statement about respondent judge being a mere pairing judge was not an
apology for the courts congested dockets but a mere statement of fact as to the
impossibility of setting the case for pre-trial at an earlier date.
Furthermore, the OSG asserts that respondent judges denial of petitioners motion
to dismiss was in order as he correctly applied the principles of relativity and flexibility
in determining whether petitioners right to speedy trial had been violated.[19]
Respondents-private complainants, on the other hand, maintain in their
Comment[20] that several Supreme Court decisions[21] dealing with the issue of the
constitutional guaranty of a speedy trial, the Speedy Trial Act of 1998, and SCC No.
38-98 have held that the right is deemed violated only when the proceedings are
attended by vexatious, capricious and oppressive delays, which did not obtain in the
present case, petitioner himself having been instrumental in the delay in the
prosecution of the case.
The petition does not impress.
Petitioner draws attention to the time gap of 105 days from his arraignment on
February 12, 2003 up to the first pre-trial setting on May 28, 2003, and another gap of
148 days from the latter date up to the second pre-trial setting on October 23, 2003 or
for a total of 253 days - a clear contravention, according to petitioner, of the 80-day
time limit from arraignment to trial.
It bears noting, however, that on his arraignment on February 12, 2003, petitioner
interposed no objection to the setting of the pre-trial to May 28, 2003 which was, as
earlier stated, later declared a non-working day. Inarguably, the cancellation of the
scheduled pre-trial on that date was beyond the control of the trial court.
Petitioner argues, however, that the lapse of 253 days (from arraignment to
October 23, 2003) was not justified by any of the excusable delays as embodied in the
time exclusions[22] specified under Section 3 of Rule 119. The argument is unavailing.
In Solar Team Entertainment, Inc. v. Judge How,[23] the Court stressed that the
exceptions consisting of the time exclusions provided in the Speedy Trial Act of 1998
reflect the fundamentally recognized principle that speedy trial is a relative term and
necessarily involves a degree of flexibility. This was reiterated in People v. Hernandez,
[24] viz:
The right of the accused to a speedy trial is guaranteed under Sections
14(2) and 16, Article III of the 1987 Constitution. In 1998, Congress enacted
R.A. No. 8493, otherwise known as the "Speedy Trial Act of 1998." The law
provided for time limits in order "to ensure a speedy trial of all criminal cases
before the Sandiganbayan, [RTC], Metropolitan Trial Court, Municipal Trial
Court, and Municipal Circuit Trial Court." On August 11, 1998, the Supreme
Court issued Circular No. 38-98, the Rules Implementing R.A. No. 8493. The
provisions of said circular were adopted in the 2000 Revised Rules of Criminal
Procedure. As to the time limit within which trial must commence after
arraignment, the 2000 Revised Rules of Criminal Procedure states:
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the
provisions of section 1(g), Rule 116 and the preceding section 1, for the
first twelve-calendar-month period following its effectivity on September
15, 1998, the time limit with respect to the period from arraignment to
trial imposed by said provision shall be one hundred eighty (180) days.
For the second twelve-month period, the time limit shall be one hundred
twenty (120) days, and for the third twelve-month period, the time limit
shall be eighty (80) days.
R.A. No. 8493 and its implementing rules and the Revised Rules of Criminal
Procedure enumerate certain reasonable delays as exclusions in the computation of
the prescribed time limits. They also provide that "no provision of law on speedy trial
and no rule implementing the same shall be interpreted as a bar to any charge of
denial of speedy trial as provided by Article III, Section 14(2), of the 1987 Constitution."
Thus, in spite of the prescribed time limits, jurisprudence continues to adopt the view
that the concept of "speedy trial" is a relative term and must necessarily be a flexible
concept. In Corpuz v. Sandiganbayan, we held:
The right of the accused to a speedy trial and to a speedy disposition of the case
against him was designed to prevent the oppression of the citizen by holding criminal
prosecution suspended over him for an indefinite time, and to prevent delays in the
administration of justice by mandating the courts to proceed with reasonable dispatch
in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a
case is violated only when the proceeding is attended by vexatious, capricious and
oppressive delays. x x x
While justice is administered with dispatch, the essential ingredient is orderly,
expeditious and not mere speed. It cannot be definitely said how long is too long in a
system where justice is supposed to be swift, but deliberate. It is consistent with
delays and depends upon circumstances. It secures rights to the accused, but it does
not preclude the rights of public justice. Also, it must be borne in mind that the rights
given to the accused by the Constitution and the Rules of Court are shields, not
weapons; hence, courts are to give meaning to that intent.
A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc basis.
In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered: (a)
length of delay; (b) the reason for the delay; (c) the defendants assertion of his right;
and (d) prejudice to the defendant.(citations omitted) (underscoring supplied)
The time limits set by the Speedy Trial Act of 1998 do not thus preclude justifiable
postponements and delays when so warranted by the situation.[25] To the Court, the
reasons for the postponements and delays attendant to the present case reflected
above are not unreasonable. While the records indicate that neither petitioner nor his
counsel was notified of the resetting of the pre-trial to October 23, 2003, the same
appears to have been occasioned by oversight or simple negligence which, standing
alone, does not prove fatal to the prosecutions case. The faux pas was acknowledged
and corrected when the MeTC recalled the arrest warrant it had issued against
petitioner under the mistaken belief that petitioner had been duly notified of the
October 23, 2003 pre-trial setting.[26]
Reiterating the Courts pronouncement in Solar Team Entertainment, Inc.[27] that
speedy trial is a relative and flexible term, Lumanlaw v. Peralta, Jr.[28] summons the
courts to maintain a delicate balance between the demands of due process and the
132
strictures of speedy trial on the one hand, and the right of the State to prosecute
crimes and rid society of criminals on the other.
Applying the balancing test for determining whether an accused has been denied
his constitutional right to a speedy trial, or a speedy disposition of his case, taking into
account several factors such as the length and reason of the delay, the accuseds
assertion or non-assertion of his right, and the prejudice to the accused resulting from
the delay,[29] the Court does not find petitioner to have been unduly and excessively
prejudiced by the delay in the proceedings, especially given that he had posted bail.
WHEREFORE, the petition is DENIED.
Costs against Petitioner.
SO ORDERED.
G.R. No. L-30104 July 25, 1973
HON. GREGORIO. N. GARCIA, Judge of the City Court of Manila, and FRANCISCO
LORENZANA, Petitioners, vs. HON. FELIX DOMINGO, Judge of the Court of First
Instance of Manila, EDGARDO CALO and SIMEON CARBONNEL, Respondents.
FERNANDO, J.:
The pivotal question in this petition for certiorari and prohibition, one which thus far
has remained unresolved, is the meaning to be accorded the constitutional right to
public trial. 1More specifically, did respondent Judge commit a grave abuse of
discretion in stigmatizing as violative of such a guarantee the holding of the trial of the
other respondents 2inside the chambers of city court Judge Gregorio Garcia named as
the petitioner. 3That was done in the order now impugned in this suit, although such a
procedure had been agreed to beforehand by the other respondents as defendants,
the hearings have been thus conducted on fourteen separate occasions without
objection on their part, and without an iota of evidence to substantiate any claim as to
any other person so minded being excluded from the premises. It is thus evident that
what took place in the chambers of the city court judge was devoid of haste or
intentional secrecy. For reasons to be more fully explained in the light of the facts
ascertained - the unique aspect of this case having arisen from what turned out to be
an unseemly altercation, force likewise being employed, due to the mode in which the
arrest of private petitioner for a traffic violation was sought to be effected by the two
respondent policemen thus resulting in charges and counter-charges with eight
criminal cases being tried jointly by city court Judge in the above manner - we rule that
there was no transgression of the right to a public trial, and grant the petition.
It was alleged and admitted in the petition: "In Branch I the City Court of Manila
presided over by petitioner Judge, there were commenced, by appropriate
informations all dated January 16, 1968, eight (8) criminal actions against respondent
Edgardo Calo, and Simeon Carbonnel and Petitioner Francisco Lorenzana, as follows:
a. Against Edgardo Calo (on complaint of Francisco Lorenzana) (1) Criminal Case No.
F-109192, also for slight physical injuries; (2) Criminal Case No. F-109192, alsofor
slight physical injuries; and (3) Criminal Case No. F-109193, for maltreatment; b.
Against Simeon Carbonnel (id.) (1)Criminal Case No. F-109197, for maltreatment; (2)
Criminal Case No. F-109196, for slight physical injuries; and (3) Criminal Case No.
F-109198, for light threats; (c) Against Francisco Lorenzana (on complaint of Calo and
Carbonnel) (1) Criminal Case No. F-109201, for violation of Sec. 887 of the Revised
Ordinances of Manila (resisting an officer); and (2) Criminal Case No. F-109200, for
slander." 4The above was followed by this recital: "The trial of the aforementioned
cases was jointly held on March 4, 1968, March 18, 1968, March 23, 1968, March 30,
1968, April 17, 1968, April 20, 1968, May 4,1968, May 11, 1968, June 1, 1968, June
15, 1968, June 22, 1968, June 29, 1968, August 3, 1968 and August 10, 1968. All the
fourteen (14) trial dates - except March 4 and 18, and April 17, 1968 - fell on a
Saturday. This was arranged by the parties and the Court upon the insistence of
respondents Calo and Carbonnel who, as police officers under suspension because of
the cases, desired the same to be terminated as soon as possible and as there were
many cases scheduled for trial on the usual criminal trial days (Monday, Wednesday
and Friday), Saturday was agreed upon as the invariable trial day for said eight (8)
criminal cases." 5Also this: "The trial of the cases in question was held, with the
133
conformity of the accused and their counsel, in the chambers of Judge Garcia." 6Then
came these allegations in the petition: "During all the fourteen (14) days of trial,
spanning a period of several months (from March to August, 1968), the accused were
at all times represented by their respective counsel, who acted not only in defense of
their clients, but as prosecutors of the accusations filed at their clients' instance. There
was only one (1) day when Atty. Consengco, representing respondent Calo and
Carbonnel, was absent. This was on April 20, 1968. But at the insistence of Pat.
Carbonnel, the trial proceeded, and said respondent cross-examined one of the
witnesses presented by the adverse party. In any case, no pretense has been made by
the respondents that this constituted an irregularity correctible on certiorari. At the
conclusion of the hearings the accused, thru counsel, asked for and were granted time
to submit memoranda. Respondents Calo and Carbonnel, thru counsel, Atty. Rafael
Consengco, submitted a 14-page memorandum with not less than 35 citations of
relevant portions of the transcript of stenographic notes in support of their prayer for
exoneration, and conviction of petitioner Lorenzana in respect of their countercharges
against the latter. It is worthy of note that up to this late date, said respondents Calo
and Carbonnel had not objected to - or pointed out - any supposed irregularity in the
proceedings thus far; the memorandum submitted in their behalf is confined to a
discussion of the evidence adduced in, and the merits of the cases." 7It was stated in
the next petition:
"The promulgation of judgment was first scheduled on September 23, 1968. This
was postponed to September 28, 1968 at the instance of Atty. Rafael Consengco, as
counsel respondents Calo and Carbonnel, and again to October 1, 1968 at 11 o'clock
in the morning, this time at the instance of Atty. Consengco and Atty. Francisco Koh
who had, in the meantime, also entered his appearance as counsel for respondents
Calo and Carbonnel. The applications for postponement were not grounded upon any
supposed defect or irregularity of the proceedings." 8
Mention was then made of when a petition for certiorari was filed with respondent
Judge: "Early in the morning of October 1, 1968, Edgardo Calo and Simeon
Carbonnel, thru their counsel, Atty. Rafael S. Consengco, filed with the Court of First
Instance a petition for certiorari and prohibition, with application for preliminary
prohibitory and mandatory injunction ... [alleging jurisdictional defects]." 9Respondent
Judge acting on such petition forthwith issued a restraining order thus causing the
deferment of the promulgation of the judgment. After proceedings duly had, there was
an order from him "declaring that 'the constitutional and statutory rights of the accused'
had been violated, adversely affecting their 'right to a free and impartial trial' [noting]
'that the trial of these cases lasting several weeks held exclusively in chambers and
not in the court room open the public';" and ordering the city court Judge, now
petitioner, "to desist from reading or causing to be read or promulgated the decisions
he may have rendered already in the criminal cases (in question) ... pending in his
Court, until further orders of this Court.'" 10
A motion for reconsideration proving unavailing, petition on January 28, 1969,
elevated the matter to this Tribunal by means of the present suit for certiorari and
prohibition. In its resolution of February 3, 1969, respondents were required to answer,
with a preliminary injunction likewise being issued. As was to be expected the answer
filed by respondent Judge on March 11, 1969 and that by the other respondents on
March 19, 1969 did attempt to justify the validity of the finding that there was a failure
to respect the right to a public trial of accused persons. Neither in such pleadings nor
in the memorandum filed, although the diligence displayed by counsel was quite
evident, was there any persuasive showing of a violation of constitutional guarantee of
a public trial, the basic issue to be resolved. Rather it was the mode of approach
followed by counsel Andres R. Narvasa for petitioners that did manifest a deeper
understanding of its implications and ramifications. Accordingly, as previously stated, it
is for us to grant the merits prayed for.
1. The 1935 Constitution which was in force at the time of the antecedents of this
petition, as set forth at the outset, explicitly enumerated the right to a public trial to
which an accused was entitled. So it is, as likewise made clear, under present
dispensation. As a matter of fact, that was one constitutional provision that needed
only a single, terse summation from the Chairman of the Committee on the Bill of
Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. As was stressed by
him: "Trial should also be public in order to offset any danger of conducting it in an
illegal and unjust manner." 11It would have been surprising if its proposed inclusion in
the Bill of Rights had provoked any discussion, much less a debate. It was merely a
reiteration what appeared in the Philippine Autonomy Act of 1916, popularly known as
the Jones Law. 12Earlier, such a right found expression in the Philippine Bill of 1902,
likewise an organic act of the then government of this country as an unincorporated
territory of the United States. 13Historically as was pointed out by Justice Black,
speaking for the United States Supreme Court in the leading case of In re Oliver:
14"This nation's accepted practice of guaranteeing a public trial to an accused has its
roots in [the] English common law heritage. 15He then observed that the exact date of
its origin is obscure, "but it likely evolved long before the settlement of the [United
States] as an accompaniment of the ancient institution of jury trial." 16It was then
noted by him that there, "the guarantee to an accused of the right to a public trial
appeared in a state constitution in 1776." 17Later it was embodied in the Sixth
Amendment of the Federal Constitution ratified in 1791. 18He could conclude his
historical survey "Today almost without exception every state by constitution, statute,
or judicial decision, requires that all criminal trials be open to the public." 19Such is the
venerable, historical lineage of the right to a public trial.
2. The crucial question of the meaning to be attached this provision remains. The
Constitution guarantees an accused the right to a public trial. What does it signify?
Offhand it does seem fairly obvious that here is an instance where language is to be
given a literal application. There is no ambiguity in the words employed. The trial must
be public. It possesses that character when anyone interested in observing the manner
a judge conducts the proceedings in his courtroom may do so. There is to be no ban
on such attendance. His being a stranger to the litigants is of no moment. No
relationship to the parties need be shown. The thought that lies behind this safeguard
is the belief that thereby the accused is afforded further protection, that his trial is likely
to be conducted with regularity and not tainted with any impropriety. It is not amiss to
recall that Delegate Laurel in his terse summation the importance of this right singled
out its being a deterrence to arbitrariness. It is thus understandable why such a right is
deemed embraced in procedural due process. 20Where a trial takes place, as is quite
usual, in the courtroom and a calendar of what cases are to be heard is posted, no
problem arises. It the usual course of events that individuals desirous of being present
are free to do so. There is the well recognized exception though that warrants the
exclusion of the public where the evidence may be characterized as "offensive to
decency or public morals." 21
134
 What did occasion difficulty in this suit was that for the convenience of the parties,
and of the city court Judge, it was in the latter's air-conditioned chambers that the trial
was held. Did that suffice to investigate the proceedings as violative of this right? The
answer must be in the negative. There is no showing that the public was thereby
excluded. It is to be admitted that the size of the room allotted the Judge would reduce
the number of those who could be our present. Such a fact though is not indicative of
any transgression of this right. Courtrooms are not of uniform dimensions. Some are
smaller than others. Moreover, as admitted by Justice Black in his masterly In re Oliver
opinion, it suffices to satisfy the requirement of a trial being public if the accused could
"have his friends, relatives and counsel present, no matter with what offense he may
be charged." 22
Then, too, reference may also be made to the undisputed fact at least fourteen
hearings had been held in chambers of the city court Judge, without objection on the
part of respondent policemen. What was said by former Chief Justice Moran should
erase any doubt as to the weight to be accorded, more appropriately the lack of
weight, to any such objection raised. Thus: "In one case, the trial of the accused was
held in Bilibid prison. The accused, invoking his right to a public trial, assigned the
procedure thus taken as error. The Supreme Court held that as it affirmatively appears
on the record that the accused offered no objection to the trial of his case in the place
where it was held, his right is deemed waived." 23The decision referred to, United
States v. Mercado, 24was handed down sixty-eight years ago in 1905.
a result the attendance of the general public is much more in evidence; nor is its
presence unwelcome. When it is remembered further that the occupants of such
courts are not chosen primarily for their legal acumen, but taken from that portion of
the bar more considerably attuned to the pulse of public life, it is not to be rationally
expected that an accused would be denied whatever solace and comfort may come
from the knowledge that a judge, with the eyes of the alert court alert to his demeanor
and his rulings, would run the risk of being unjust, unfair, or arbitrary. Nor does it
change matters, just because, as did happen here, it was in the air-conditioned
chambers of a city court judge rather than in the usual place that the trial took place.
WHEREFORE, the writ of certiorari prayed for is granted nullifying, setting aside,
and declaring bereft of any legal force or effect the order of respondent Judge Felix
Domingo November 29, 1968 for being issued with grave abuse of discretion. The writ
of prohibition sought by petitioner is likewise granted, commanding respondent Judge
or any one acting in his place to desist from any further action in Criminal Case No.
74830 of the Court of First Instance of Manila other than that of dismissing the same.
The preliminary writ of injunction issued by this Court in its resolution of February 3,
1969 against the actuation of respondent Judge is made permanent. With costs
against respondent policemen Edgardo Calo and Simeon Carbonnel.
Makalintal, Actg. C.J., Teehankee, Makasiar, Antonio, Esguerra, JJ., concur.
Castro, J., did not take part.

It does seem that the challenged order of respondent is far from being Zaldivar and Barredo, JJ., are on leave.
invulnerable.
3. That is all that need be said as to the obvious merit of this petition. One other
objection to the conduct of the proceedings by the city court Judge may be briefly
disposed of. Respondent Judge would seek to lend support to an order at war with
obvious meaning of a constitutional provision by harping on the alleged abdication by
an assistant fiscal of his control over the prosecution. Again here there was a failure to
abide by settled law. If any party could complain at all, it is the People of the
Philippines for whom the fiscal speaks and acts. The accused cannot in law be termed
an offended party for such an alleged failure to comply with official duty. Moreover,
even assuming that respondent policemen could be heard to raise such a grievance,
respondent Judge ought to have been aware that thereby no jurisdictional defect was
incurred by the city court Judge. As was so emphatically declared by Justice J.B.L.
Reyes in Cariaga v. Justo-Guerrero: 25 "The case below was commenced and
prosecuted without the intervention, mediation or participation of the fiscal or any of his
deputies. This, notwithstanding, the jurisdiction of the court was not affected ... but the
court should have cited the public prosecutor to intervene ... ." 26
4. There is much to be said of course for the concern displayed by respondent
Judge to assure the reality as against the mere possibility of a trial being truly public. If
it were otherwise, such a right could be reduced to a barren form of words. To the
extent then that the conclusion reached by him was motivated by an apprehension that
there was an evasion of a constitutional command, he certainly lived up to what is
expected of a man of the robe. Further reflection ought to have convinced him though
that such a fear was unjustified. An objective appraisal of conditions in municipal or city
courts would have gone far in dispelling such misgivings. The crowded daily calendar,
the nature of the cases handled, civil as well as criminal, the relaxed attitude on
procedural rules not being strictly adhered to all make for a less tense atmosphere. As
135
[A.M. No. 01-4-03-SC. June 29, 2001.]
RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN
OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E.
ESTRADA
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA
BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY.
RICARDO ROMULO, Petitioners, v. JOSEPH E. ESTRADA and INTEGRATED BAR
OF THE PHILIPPINES, oppositors.
VITUG, J.:
The travails of a deposed President continue. The Sandiganbayan reels to start
hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the
event via live television and live radio broadcast and endeavors this Court to allow it
that kind of access to the proceedings.
On 13 March 2001, the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), an
association representing duly franchised and authorized television and radio networks
throughout the country, sent a letter 1 requesting this Court to allow live media
coverage of the anticipated trial of the plunder and other criminal cases filed against
former President Joseph E. Estrada before the Sandiganbayan in order "to assure the
public of full transparency in the proceedings of an unprecedented case in our history."
2 The request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the
Chief Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo
Romulo.
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed
the instant petition, 3 submitting the following exegesis:
"3. The foregoing criminal cases involve the previous acts of the former highest official
of the land, members of his family, his cohorts and, therefore, it cannot be over
emphasized that the prosecution thereof, definitely involves a matter of public concern
and interest, or a matter over which the entire citizenry has the right to know, be
informed and made aware of.
"4. There is no gainsaying that the constitutional right of the people to be informed on
matters of public concern, as in the instant cases, can best be recognized, served and
satisfied by allowing the live radio and television coverage of the concomitant court
proceedings.
"5. Moreover, the live radio and television coverage of the proceedings will also serve
the dual purpose of ensuring the desired transparency in the administration of justice
in order to disabuse the minds of the supporters of the past regime of any and all
unfounded notions, or ill-perceived attempts on the part of the present dispensation, to
railroad the instant criminal cases against the Former President Joseph Ejercito
Estrada." 4
Public interest, the petition further averred, should be evident bearing in mind the right
of the public to vital information affecting the nation.
In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of
this Court in a case for libel filed by then President Corazon C. Aquino. The resolution
read:
"The records of the Constitutional Commission are bereft of discussion regarding the
subject of cameras in the courtroom. Similarly, Philippine courts have not had the
opportunity to rule on the question squarely.
"While we take notice of the September 1990 report of the United States Judicial
Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule
obtaining in the Federal Courts of the United States prohibits the presence of television
cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids
the taking of photographs during the progress of judicial proceedings or radio
broadcasting of such proceedings from the courtroom. A trial of any kind or in any court
is a matter of serious importance to all concerned and should not be treated as a
means of entertainment. To so treat it deprives the Court of the dignity which pertains
to it and departs from the orderly and serious quest for truth for which our judicial
proceedings are formulated.
"Courts do not discriminate against radio and television media by forbidding the
broadcasting or televising of a trial while permitting the newspaper reporter access to
the courtroom, since a television or news reporter has the same privilege, as the news
reporter is not permitted to bring his typewriter or printing press into the courtroom.
"In Estes v. Texas, the United States Supreme Court held that television coverage of
judicial proceedings involves an inherent denial of the due process rights of a criminal
defendant. Voting 5-4, the Court through Mr. Justice Clark, identified four (4) areas of
potential prejudice which might arise from the impact of the cameras on the jury,
witnesses, the trial judge and the defendant. The decision in part pertinently stated:
"Experience likewise has established the prejudicial effect of telecasting on witnesses.
Witnesses might be frightened, play to the camera, or become nervous. They are
subject to extraordinary out-of-court influences which might affect their testimony. Also,
telecasting not only increases the trial judges responsibility to avoid actual prejudice to
the defendant, it may as well affect his own performance. Judges are human beings
also and are subject to the same psychological reactions as laymen. For the
defendant, telecasting is a form of mental harassment and subjects him to excessive
public exposure and distracts him from the effective presentation of his defense.
The television camera is a powerful weapon which intentionally or inadvertently can
destroy an accused and his case in the eyes of the public.
"Representatives of the press have no special standing to apply for a writ of mandate
to compel a court to permit them to attend a trial, since within the courtroom, a
reporters constitutional rights are no greater than those of any other member of the
public. Massive intrusion of representatives of the news media into the trial itself can
so alter or destroy the constitutionally necessary judicial atmosphere and decorum that
the requirements of impartiality imposed by due process of law are denied the
defendant and a defendant in a criminal proceeding should not be forced to run a
gauntlet of reporters and photographers each time he enters or leaves the courtroom.
"Considering the prejudice it poses to the defendants right to due process as well as
to the fair and orderly administration of justice, and considering further that the
freedom of the press and the right of the people to information may be served and
136
satisfied by less distracting, degrading and prejudicial means, live radio and television
coverage of court proceedings shall not be allowed. Video footages of court hearings
for news purposes shall be restricted and limited to shots of the courtroom, the judicial
officers, the parties and their counsel taken prior to the commencement of official
proceedings. No video shots or photographs shall be permitted during the trial proper.
"Accordingly, in order to protect the parties right to due process, to prevent the
distraction of the participants in the proceedings and in the last analysis, to avoid
miscarriage of justice, the Court resolved to PROHIBIT live radio and television
coverage of court proceedings. Video footages of court hearings for news purposes
shall be limited and restricted as above indicated."
Admittedly, the press is a mighty catalyst in awakening public consciousness, and it
has become an important instrument in the quest for truth. 5 Recent history
exemplifies medias invigorating presence, and its contribution to society is quite
impressive. The Court, just recently, has taken judicial notice of the enormous effect of
media in stirring public sentience during the impeachment trial, a partly judicial and
partly political exercise, indeed the most-watched program in the boob-tubes during
those times, that would soon culminate in EDSA II.
The propriety of granting or denying the instant petition involve the weighing out of the
constitutional guarantees of freedom of the press and the right to public information, on
the one hand, and the fundamental rights of the accused, on the other hand, along
with the constitutional power of a court to control its proceedings in ensuring a fair and
impartial trial. 6
When these rights race against one another, jurisprudence 7 tells us that the right of
the accused must be preferred to win.
With the possibility of losing not only the precious liberty but also the very life of an
accused, it behooves all to make absolutely certain that an accused receives a verdict
solely on the basis of a just and dispassionate judgment, a verdict that would come
only after the presentation of credible evidence testified to by unbiased witnesses
unswayed by any kind of pressure, whether open or subtle, in proceedings that are
devoid of histrionics that might detract from its basic aim to ferret veritable facts free
from improper influence, 8 and decreed by a judge with an unprejudiced mind,
unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until the contrary is
proved in a trial that is not lifted above its individual settings nor made an object of
publics attention 9 and where the conclusions reached are induced not by any outside
force or influence 10 but only by evidence and argument given in open court, where
fitting dignity and calm ambiance is demanded.
Witnesses and judges may very well be men and women of fortitude, able to thrive in
hardy climate, with every reason to presume firmness of mind and resolute endurance,
but it must also be conceded that "television can work profound changes in the
behavior of the people it focuses on." 11 Even while it may be difficult to quantify the
influence, or pressure that media can bring to bear on them directly and through the
shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many
ways and in varying degrees. The conscious or unconscious effect that such a
coverage may have on the testimony of witnesses and the decision of judges cannot
be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or
innocence to yield to it. 12 It might be farcical to build around them an impregnable
armor against the influence of the most powerful media of public opinion. 13
To say that actual prejudice should first be present would leave to near nirvana the
subtle threats to justice that a disturbance of the mind so indispensable to the calm
and deliberate dispensation of justice can create. 14 The effect of television may
escape the ordinary means of proof, but it is not far-fetched for it to gradually erode our
basal conception of a trial such as we know it now. 15
An accused has a right to a public trial but it is a right that belongs to him, more than
anyone else, where his life or liberty can be held critically in balance. A public trial aims
to ensure that he is fairly dealt with and would not be unjustly condemned and that his
rights are not compromised in secrete conclaves of long ago. A public trial is not
synonymous with publicized trial; it only implies that the court doors must be open to
those who wish to come, sit in the available seats, conduct themselves with decorum
and observe the trial process. In the constitutional sense, a courtroom should have
enough facilities for a reasonable number of the public to observe the proceedings, not
too small as to render the openness negligible and not too large as to distract the trial
participants from their proper functions, who shall then be totally free to report what
they have observed during the proceedings. 16
The courts recognize the constitutionally embodied freedom of the press and the right
to public information. It also approves of medias exalted power to provide the most
accurate and comprehensive means of conveying the proceedings to the public and in
acquainting the public with the judicial process in action; nevertheless, within the
courthouse, the overriding consideration is still the paramount right of the accused to
due process 17 which must never be allowed to suffer diminution in its constitutional
proportions. Justice Clark thusly pronounced, "while a maximum freedom must be
allowed the press in carrying out the important function of informing the public in a
democratic society, its exercise must necessarily be subject to the maintenance of
absolute fairness in the judicial process." 18
This Court, in the instance 19 already mentioned, citing Estes v. Texas, 20 the United
States Supreme Court holding the television coverage of judicial proceedings as an
inherent denial of due process rights of an accused, also identified the following as
being likely prejudices:
"1. The potential impact of television . . . is perhaps of the greatest significance. . . .
From the moment the trial judge announces that a case will be televised it becomes a
cause clbre. The whole community, . . . becomes interested in all the morbid details
surrounding it. The approaching trial immediately assumes an important status in the
public press and the accused is highly publicized along with the offense with which he
is charged. Every juror carries with him into the jury box these solemn facts and thus
increases the chance of prejudice that is present in every criminal case. . . .
"2. The quality of the testimony in criminal trials will often be impaired. The impact
upon a witness of the knowledge that he is being viewed by a vast audience is simply
incalculable. Some may be demoralized and frightened, some cocky and given to
overstatement; memories may falter, as with anyone speaking publicly, and accuracy
of statement may be severely undermined. . . .. Indeed, the mere fact that the trial is to
be televised might render witnesses reluctant to appear and thereby impede the trial
as well as the discovery of the truth.
137
"3. A major aspect of the problem is the additional responsibilities the presence of
television places on the trial judge. His job is to make certain that the accused receives
a fair trial. This most difficult task requires his undivided attention. . .
"4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its
presence is a form of mental if not physical harassment, resembling a police line-
up or the third degree. The inevitable close-up of his gestures and expressions during
the ordeal of his trial might well transgress his personal sensibilities, his dignity, and
his ability to concentrate on the proceedings before him sometimes the difference
between life and death dispassionately, freely and without the distraction of wide
public surveillance. A defendant on trial for a specific crime is entitled to his day in
court, not in a stadium, or a city or nationwide arena. The heightened public clamor
resulting from radio and television coverage will inevitably result in prejudice."
In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and
radio coverage could have mischievous potentialities for intruding upon the detached
atmosphere that should always surround the judicial process. 21
The Integrated Bar of the Philippines, in its Resolution of 16 April 2001, expressed its
own concern on the live television and radio coverage of the criminal trials of Mr.
Estrada; to paraphrase: Live television and radio coverage can negate the rule on
exclusion of witnesses during the hearings intended to assure a fair trial; at stake in
the criminal trial is not only the life and liberty of the accused but the very credibility of
the Philippine criminal justice system, and live television and radio coverage of the trial
could allow the "hooting throng" to arrogate unto themselves the task of judging the
guilt of the accused, such that the verdict of the court will be acceptable only if popular;
and live television and radio coverage of the trial will not subserve the ends of justice
but will only pander to the desire for publicity of a few grandstanding lawyers.
It may not be unlikely, if the minority position were to be adopted, to see protracted
delays in the prosecution of cases before trial courts brought about by petitions
seeking a declaration of mistrial on account of undue publicity and assailing a court a
quos action either allowing or disallowing live media coverage of the court
proceedings because of supposed abuse of discretion on the part of the judge.
En passant, the minority would view the ponencia as having modified the case law on
the matter. Just to the contrary, the Court effectively reiterated its standing resolution of
23 October 1991. Until 1991, the Court had yet to establish the case law on the matter,
and when it did in its 23rd October resolution, it confirmed, in disallowing live television
and radio coverage of court proceedings, that "the records of the Constitutional
Commission (were) bereft of discussion regarding the subject of cameras in the
courtroom" and that "Philippine courts (had) not (theretofore) had the opportunity to
rule on the question squarely."
But were the cases decided by the U.S. courts and cited in the minority opinion really
in point?
In Nebraska Press Association v. Stewart, 22 the Nebraska State trial judge issued an
order restraining news media from publishing accounts of confession or admissions
made by the accused or facts strongly implicating him. The order was struck down. In
Richmond Newspaper, Inc., v. Virginia, 23 the trial judge closed the courtroom to the
public and all participants except witnesses when they testify. The judge was reversed
by the U.S. Supreme Court which ruled that criminal trials were historically open. In
Globe Newspaper v. Superior Court, 24 the US Supreme Court voided a
Massachusetts law that required trial judges to exclude the press and the public from
the courtroom during the testimony of a minor victim of certain sexual offenses.
Justice Stewart, in Chandler v. Florida, 25 where two police officers charged with
burglary sought to overturn their conviction before the US Supreme Court upon the
ground that the television coverage had infringed their right to fair trial explained that
"the constitutional violation perceived by the Estes Court did not stem from the
physical disruption that might one day disappear with technological advances in the
television equipment but inhered, rather, in the hypothesis that the mere presence of
cameras and recording devices might have an effect on the trial participants prejudicial
to the accused." 26
Parenthetically, the United States Supreme Court and other federal courts do not allow
live television and radio coverage of their proceedings.
The sad reality is that the criminal cases presently involved are of great dimensions so
involving as they do a former President of the Republic. It is undeniable that these
cases have twice become the nations focal points in the two conflicting phenomena of
EDSA II and EDSA III where the magnitude of the events has left a still divided nation.
Must these events be invited anew and risk the relative stability that has thus far been
achieved? The transcendental events in our midst do not allow us to turn a blind eye to
yet another possible extraordinary case of mass action being allowed to now creep
into even the business of the courts in the dispensation of justice under a rule of law.
At the very least, a change in the standing rule of the court contained in its resolution
of 23 October 1991 may not appear to be propitious.
Unlike other government offices, courts do not express the popular will of the people in
any sense which, instead, are tasked to only adjudicate justiciable controversies on the
basis of what alone is submitted before them. 27 A trial is not a free trade of ideas. Nor
is a competing market of thoughts the known test of truth in a courtroom. 28
The Court is not all that unmindful of recent technological and scientific advances but
to chance forthwith the life or liberty of any person in a hasty bid to use and apply
them, even before ample safety nets are provided and the concerns heretofore
expressed are aptly addressed, is a price too high to pay.
WHEREFORE, the petition is DENIED.
SO ORDERED.
Pardo, Buena, Gonzaga-Reyes and De Leon, Jr., JJ., concur.
Ynares-Santiago, J., is on leave.
Mendoza, J., I concur in the majority opinion of Vitug, J., and join the separate opinion
of Kapunan J.
138
Tumey v. Ohio, 273 U.S. 510 (1927)
Argued November 29, 30, 1926
Decided March 7, 1927
273 U.S. 510
ERROR TO THE SUPREME COURT OF OHIO
Syllabus
1. To subject a defendant to trial in a criminal case involving his liberty or property
before a judge having a direct, personal, substantial interest in convicting him is a
denial of due process of law. P. 273 U. S. 522.
2. A system by which an inferior judge is paid for his service only when he convicts the
defendant has not become so customary in the common law or in this country that it
can be regarded as due process where the costs usually imposed are not so small as
to be within the maxim de minimis non curat lex. Pp. 273 U. S. 523, 273 U. S. 531.
Page 273 U. S. 511
3. Under statutes of Ohio, offenses against State prohibition, involving a wide range of
fines enforceable by imprisonment, may be tried without a jury, before the mayor of
any rural village situate in the county (however populous) in which offenses occur; his
judgment upon the facts is final and conclusive unless so clearly unsupported as to
indicate mistake, bias, or willful disregard of duty; the fines are divided between the
State and village; the village, by means of the fines collected, hires attorneys and
detectives to arrest alleged offenders anywhere in the county and prosecute them
before the mayor; in addition to his salary, the mayor, when he convicts, but not
otherwise, receive his fees and cost amounting to a substantial income; the fine offer a
means of adding materially to the financial prosperity of the village, for which the
mayor, in his executive capacity, is responsible. Held violative of the Fourteenth
Amendment. Pp. 273 U. S. 520, 273 U. S. 531.
115 Oh.St. 701, reversed.
ERROR to a judgment of the Supreme Court of Ohio which declined to review a
judgment of the State Court of Appeals, 22 Oh.L.Rep. 634, reversing a judgment of the
Court of Common Pleas of Hamilton County, 25 Oh.Nisi Prius (N.S.) 580, which
reversed a judgment of the Mayor of the Village of North College Hill convicting and
fining Tumey for violation of the Ohio Prohibition Act and ordering that he be
imprisoned until the fine and costs were paid.
Mr. Chief Justice TAFT delivered the opinion of the Court.
The question in this case is whether certain statutes of Ohio, in providing for the trial
by the mayor of a village of one accused of violating the Prohibition Act of the state
(Gen. Code, Ohio, 6212-13 et seq.), deprive the accused of due process of law and
violate the Fourteenth Amendment to the Federal Constitution, because of the
pecuniary and other interest which those statutes give the mayor in the result of the
trial.
Tumey, the plaintiff in error hereafter to be called the defendant, was arrested and
brought before Mayor Pugh, of the village of North College Hill, charged with unlawfully
possessing intoxicating liquor. He moved for his dismissal because of the
disqualification of the mayor to try him under the Fourteenth Amendment. The mayor
denied the motion, proceeded to the trial, convicted the defendant of unlawfully
possessing intoxicating liquor within Hamilton county as charged, fined him $100, and
ordered that he be imprisoned until the fine and costs were paid. He obtained a bill of
exceptions and carried the case on error to the court of common pleas of Hamilton
county. That court heard the case and reversed the judgment, on the ground that the
mayor was disqualified as claimed. 25 Ohio Nisi Prius (N. S.) 580. The state sought
review by the Court of Appeals of the First Appellate District of Ohio, which reversed
the common pleas and affirmed the judgment of the mayor. 23 Ohio Law Reporter,
634.
On May 4, 1926, the state Supreme Court refused defendant's application to require
the Court of Appeals to certify its record in the case. The defendant then filed a petition
in error in that court as of right, asking that the judgment of the mayor's court and of
the appellate court be reversed on constitutional grounds. On May 11, 1926, the
Supreme Court adjudged that the petition be dismissed for the reason that no
debatable constitutional question was involved in the cause. The judgment was then
brought here upon a writ of error allowed by the Chief Justice of the state Supreme
Court, to which it was rightly directed. Matthews v. Huwe, Treasurer, 269 U. S. 262, 46
S. Ct. 108, 70 L. Ed. 266; Hetrick v. Village of Lindsey, 265 U. S. 384, 44 S. Ct. 486, 68
L. Ed. 1065. This brings us to the merits of the case.
The defendant was arrested and charged with the unlawful possession of intoxicating
liquor at White Oak, another village in Hamilton county, Ohio, on a warrant issued by
the mayor of North College Hill. The mayor acted under the sections of the state
Prohibition Act and Ordinance No. 125 of the village of North College Hill adopted by
pursuance thereof.
Section 6212-15, General Code, Ohio, provides that:
'No person shall, after the passage of this act * * * manufacture, * * * possess, * * * any
intoxicating liquors. * * *'
Section 6212-17 provides that:
'* * * Any person who violates the provisions of this act (G. C. 6212-13 to 6212-20)
for a first offense shall be fined not less than one hundred dollars nor more than one
thousand dollars; for a second offense he shall be fined not less than three hundred
dollars nor more than two thousand dollars; for a third and each subsequent offense,
he shall be fined not less than five hundred dollars nor more than two thousand dollars
and be imprisoned in the state penitentiary not less than one year nor more than five
years. * * *'
The mayor has authority, which he exercised in this case, to order that the person
sentenced to pay a fine shall remain in prison until the fine and costs are paid. At the
time of this sentence, the prisoner received a credit of 60 cents a day for each day's
imprisonment. By a recent amendment, that credit has increased to $1.50 a day
Sections 13716, 13717, Gen. Code Ohio.
Section 6212-18 provides, in part, that:
'Any justice of the peace, mayor, municipal or police judge, probate or common pleas
judge within the county with whom the affidavit is filed charging a violation of any of the
provisions of this act (G. C. 6212-13 to 6212-20) when the offense is alleged to
have been committed in the county in which such mayor, justice of the peace, or judge
139
may be sitting, shall have final jurisdiction to try such cases upon such affidavits
without a jury, unless imprisonment is a part to the penalty, but error may be
prosecuted to the judgment of such mayor, justice of the peace, or judge as herein
provided.'
Error from the mayor's court lies to the court of common pleas of the county, and a bill
of exceptions is necessary to present questions arising on the evidence. Sections
10359, 10361, General Code Ohio. The appellate review in respect to evidence is
such that the judgment can only be set aside by the reviewing court on the ground that
it is so clearly unsupported by the weight of the evidence as to indicate some
misapprehension or mistake or bias on the part of the trial court or a wilful disregard of
duties. Datesh v. State, 23 Ohio Nisi Prius (N. S.) 273.
Section 6212-19, provides that:
'Money arising from fines and forfeited bonds shall be paid one-half into the state
treasury credited to the general revenue fund, one-half to the treasury of the township,
municipality or county where the prosecution is held, according as to whether the
officer hearing the case is a township, municipal, or county officer.'
Section 6212-37 provides that:
'The council of any city or village may, by ordinance, authorize the use of any part of
the fines collected for the violation of any law prohibiting the manufacture and sale of
intoxicating liquors, for the purpose of hiring attorneys, detectives, or secret service
officers to secure the enforcement of such prohibition law. And such council are hereby
authorized to appropriate not more than five hundred dollars annually from the general
revenue fund, for the purpose of enforcing the law prohibiting the manufacture and
sale of intoxicating liquors, when there are no funds available from the fines collected
for the violation of such prohibitory law.' 109 Ohio Laws, p. 9, 17.
Under the authority of the last section, the village council of North College Hill passed
Ordinance No. 125, as follows: 'An ordinance to provide for compensation to be paid
from the secret service funds of the village of North College Hill, Hamilton county,
Ohio, created by authority of section 6212-37, of the General Code of Ohio, to
detectives, secret service officers, deputy marshals' and attorneys' fees, costs, etc., for
services in securing evidence necessary to conviction and prosecuting violation of the
law of the state of Ohio prohibiting the liquor traffic.
'Be it ordained by the council of the village of North College Hill, Hamilton county, Ohio:
'Section I. That fifty per cent. of all moneys hereafter paid into the treasury to said
village of North College Hill, Ohio, that is one-half of the share of all fines collected and
paid into and belonging to said village of North College Hill, Ohio, received from fines
collected under any law of the state of Ohio, prohibiting the liquor traffic, shall
constitute a separate fund to be called the secret service fund to be used for the
purpose of securing the enforcement of any prohibition law.
'Section II. That deputy marshals of the village of North College Hill, Ohio, shall receive
as compensation for their services in securing the evidence necessary to secure the
conviction of persons violating the law of the state of Ohio, prohibiting the liquor traffic,
an amount of money equal to 15 per cent. of the fine collected, and other fees allowed
by law.
'Section III. That the attorney at law of record prosecuting persons charged with
violating the law of the state of Ohio, prohibiting the liquor traffic, shall receive as
compensation for legal services an amount equal to 10 per cent. of the fine collected,
in all cases, whether the plea be guilty or not guilty.
'Section IV. That detectives and secret service officers shall receive as compensation
for their services in securing the evidence necessary to secure the conviction of
persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of
money equal to 15 per cent. of the fine collected.
'Section V. That the mayor of the village of North College Hill, Ohio, shall receive or
retain the amount of his costs in each case, in addition to his regular salary, as
compensation for hearing such cases.
'Section VI. This ordinance is hereby declared to be an emergency ordinance,
necessary to the immediate preservation of the public peace and safety, made
necessary by reason of the flagrant violation of the laws of Ohio, enacted to prohibit
traffic in intoxicating liquors, and shall be in effect from and after this passage.'
The duties of the mayor of a village in Ohio are primarily executive. Section 4248 of
the General Code of Ohio provides as follows:
'Section 4248. The executive power and authority of villages shall be vested in a
mayor, clerk, treasurer, marshal, street commissioner, and such other officers and
departments thereof as are created by law.
'Section 4255. * * * He (the mayor) shall be the chief conservator of the peace within
the corporation. * * * He shall be the president of the council, and shall preside at all
regular and special meetings thereof, but shall have no vote except in case of a tie.
'Section 4258. * * * He shall see that all ordinances, by-laws and resolutions of the
council are faithfully obeyed and enforced. * * *
'Section 4259. The mayor shall communicate to council from time to time a statement
of the finances of the municipality, and such other information relating thereto and to
the general condition of the affairs of the municipality as he deems proper or as may
be required by council.
'Section 4262. The mayor shall supervise the conduct of the officers of the corporation.
* * *' The fees which the mayor and marshal received in this case came to them by
virtue of the general statutes of the state applying to all state cases, liquor and
otherwise. The mayor was entitled to hold the legal fees taxed in his favor. General
Code Ohio, 4270; State v. Nolte, 111 Ohio St. 486, 146 N. E. 51, 37 A. L. R. 1426.
Moreover, the North College Hill village council sought to remove all doubt on this point
by providing (section 5, Ordinance 125, supra), that he should receive or retain the
amount of his costs in each case in addition to his regular salary, as compensation for
hearing such cases. But no fees or costs in such cases are paid him, except by the
defendant, if convicted. There is, therefore, no way by which the mayor may be paid
for his service as judge, if he does not convict those who are brought before him; nor is
there any fund from which marshals, inspectors and detectives can be paid for their
services in arresting and bringing to trial and furnishing the evidence to convict in such
cases, except it be from the initial $500 which the village may vote from its treasury to
set the court going or from a fund created by the fines thereafter collected from
convicted defendants.
By an act of 1913 (103 O. L. 290), the mayor's court in villages in Hamilton county, and
in half a dozen other counties with large cities, was deprived of jurisdiction to hear and
punish misdemeanors committed in the county beyond the limits of the corporation.
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The Prohibition Act, known as the Crabbe Act, adopted in 1920 (108 O. L. pt. 1, p. 388,
and part 2, p. 1182) changed this and gave to the mayor of every village in the state
jurisdiction within the county in which it was situate to try violations of that act.
Counsel for the state in their brief explain the vesting by state Legislatures of this
country of jurisdiction in village courts as follows:
'The purpose of extending the jurisdiction in the first instance was to break up places
of outlawry that were located on the municipal boundary just outside of the city. The
Legislature also faced the situation that in some of the cities the law enforcement
agencies were failing to perform their duty, and therefore, in order that those forces
that believe in enforcement and upholding of law might have some courts through
which process could be had, it gave to mayors county-wide jurisdiction.'
It was further pointed out in argument that the system by which the fines to be
collected were to be divided between the state and the village was for the proper
purpose of stimulating the activities of the village officers to such due enforcement.
The village of North College Hill, in Hamilton county, Ohio, is shown by the federal
census to have a population of 1,104. That of Hamilton county, including the city of
Cincinnati, is more than half a million. The evidence discloses that Mayor Pugh came
to office after Ordinance No. 125 was adopted, and that there was a division of public
sentiment in the village as to whether the ordinance should continue in effect. A
petition opposing it and signed by a majority of the voters was presented to Mayor
Pugh. To this the mayor answered with the declaration that, if the village was in need
of finances, he was in favor of and would carry on 'the liquor court,' as it was popularly
called, but that, if the court was not needed for village financial reasons, he would not
do so. It appears that substantial sums were expended out of the village treasury from
the fund made up of the fines thus collected for village improvements and repairs. The
mayor was the owner of a house in the village.
Between May 11, 1923, and December 31, 1923, the total amount of fines for violation
of the prohibition law collected by this village court was upwards of $20,000, from
which the state received $8,992.50, North College Hill received $4,471.25 for its
general uses, $2,697.25 was placed to the credit of the village safety fund, and the
balance was put in the secret service fund. Out of this, the person acting as prosecutor
in the liquor court received in that period $1,796.50; the deputy marshals, inspectors
and other employees, including the detectives, received $2,697.75; and $438.50 was
paid for costs in transporting prisoners, serving writs and other services in connection
with the trial of these cases. Mayor Pugh received $696.35 from these liquor cases
during that period as his fees and costs, in addition to his regular salary.
That officers acting in a judicial or quasi judicial capacity are disqualified by their
interest in the controversy to be decided is of course the general rule. Dimes v. Grand
Junction Canal, 3 H. L. C. 759; Gregory v. Railroad, 4 Ohio St. 675; Pearce v. Atwood,
13 Mass. 324; Taylor v. Commissioners, 105 Mass. 225; Kentish Artillery v. Gardiner,
15 R. I. 296, 3 A. 662; Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114; State v. Crane,
36 N. J. Law, 394; Railroad Company v. Howard, 20 Mich. 18; Stockwell v. Township,
22 Mich. 341; Findley v. Smith, 42 W. Va. 299, 26 S. E. 370; Nettleton's Appeal, 28
Conn. 268; Cooley's Constitutional Limitation (7th Ed.) p. 592 et seq. Nice questions,
however, often arise as to what the degree or nature of the interest must be. One is in
respect to the effect of the membership of a judge in a class of taxpayers or others to
be affected by a principle of law, statutory or constitutional, to be applied in a case
between other parties and in which the judge has no other interest. Then the
circumstance that there is no judge not equally disqualified to act in such a case has
been held to affect the question. Wheeling v. Black, 25 W. Va. 266, 280; Peck v.
Freeholders of Essex, 20 N. J. Law, 457; Dimes v. Grand Junction Canal, 3 H. L. C.
759 (see Baron Parke's Answer for the Judges, pp. 785, 787); Year Book, 8 Henry VI,
19; s. c. 2 Roll. Abridg. 93; Evans v. Gore, 253 U. S. 245, 247, 40 S. Ct. 550, 64 L. Ed.
887, 11 A. L. R. 519; Stuart v. Mechanics' & Farmers' Bank, 19 Johns. (N. Y.) 496;
Ranger v. Railroad, 5 H. L. C. 72. We are not embarrassed by such considerations
here, for there were available in this case other judicial officers who had no
disqualification, either by reason of the character of their compensation or their relation
to the village government.
All questions of judicial qualification may not involve constitutional validity. Thus
matters of kinship, personal bias, state policy, remoteness of interest would seem
generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W. Va.
266, 270. But it certainly violates the Fourteenth Amendment and deprives a defendant
in a criminal case of due process of law to subject his liberty or property to the
judgment of a court, the judge of which has a direct, personal, substantial pecuniary
interest in reaching a conclusion against him in his case.
The mayor of the village of North College Hill, Ohio, has a direct personal pecuniary
interest in convicting the defendant who came before him for trial, in the $12 of costs
imposed in his behalf, which he would not have received if the defendant had been
acquitted. This was not exceptional, but was the result of the normal operation of the
law and the ordinance. Counsel for the state do not deny this, but assert the validity of
the practice as an exception to the general rule. They rely upon the cases of Ownbey
v. Morgan, 256 U. S. 94, 41 S. Ct. 433, 65 L. Ed. 837, 17 A. L. R. 873; Murray's Lessee
v. Hoboken Land & Improvement Co., 18 How. 272, 276-280, 15 L. Ed. 372.
These cases show that in determining what due process of law is, under the Fifth or
Fourteenth Amendment, the court must look to those settled usages and modes of
proceeding existing in the common and statute law of England before the emigration of
our ancestors, which were shown not to have been unsuited to their civil and political
condition by having been acted on by them after the settlement of this country.
Counsel contend that in Ohio and in other states, in the economy which it is found
necessary to maintain in the administration of justice in the inferior courts by justices of
the peace and by judicial officers of like jurisdiction, the only compensation which the
state and county and township can afford is the fees and costs earned by them, and
that such compensation is so small that it is not to be regarded as likely to influence
improperly a judicial officer in the discharge of his duty, or as prejudicing the defendant
in securing justice. even though the magistrate will receive nothing if the defendant is
not convicted.
We have been referred to no cases at common law in England, prior to the separation
of colonies from the mother country, showing a practice that inferior judicial officers
were dependant upon the conviction of the defendant for receiving their compensation.
Indeed, in analogous cases it is very clear that the slightest pecuniary interest of any
officer, judicial or quasi judicial, in the resolving of the subject-matter which he was to
decide, rendered the decision voidable. Bonham's Case, 8 Coke, 118a; same case, 2
Brownlow & Goldesborough's Reports, 255; City of London v. Wood, 12 Modern
Reports, 669, 687; Day v. Savage, Hobart, 85, 87; Hesketh v. Braddock, 3 Burrows,
1847, 1856, 1857, 1858.
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As early as 12 Richard II, A. D. 1388, it was provided that there should be a
commission of the justices of the peace, with six justices in the county once a quarter,
which might sit for three days, and that the justices should receive four shillings a day
'as wages,' to be paid by the sheriffs out of a fund make up of fines and amercements,
and that that fund should be added to out of the fines and amercements from the
Courts of the Lords of the Franchises which were hundred courts allowed by the king
by grant to individuals.
It was required that the justices of the peace should be knights, esquires, or gentlemen
of the land, qualifications that were not modified until 1906. The wages paid were used
'to defray their common diet,' and they soon became obsolete. Holdsworth's History of
English Law, 288, 289. The wages paid were not dependant on conviction of the
defendant. They were paid at a time when the distinction between torts and criminal
cases was not clear. Holdworth, vol. 2, pp. 363, 365; Id. vol. 3, p. 328. And they came
from a fund which was created by fines and amercements collected from both sides in
the controversy. There was always a plaintiff, whether in the action for a tort or the
prosecution for an offense. In the latter he was called the prosecutor. If he failed to
prove his case, whether civil or criminal, he was subject to amercement pro falso
clamore, while, if he succeeded, the defendant was in misericordia. See
Commonwealth v. Johnson, 5 Serg. & R. (Pa.) 195, 198; Musser v. Good, 11 Serg. &
R. (Pa.) 247. Thus in the outcome some one would be amerced in every case, and the
amercements generally went to the crown, and the fund was considerable. The statute
of Richard II remained on the statute book until 1855 when it was repealed by St. 18
and 19 Victoria. Meantime the hundred courts by franchise had largely disappeared.
The wages referred to were not part of the costs. The costs at common law were the
amounts paid either by the plaintiff or prosecutor or by the defendant for the witnesses
or services of the court officers. Burn's Justice, vol. 1, p. 628; Chitty's Criminal Law
(4th Ed. 1841) vol. 1, p. 829. See, also, St. 14 George III, c. 20, 1774. For hundreds of
years the justices of the peace of England seem not to have received compensation
for court work. Instead of that they were required, upon entering upon the office, to pay
certain fees. Holdsworth, vol. 1, p. 289; 19 Halsbury's Laws of England, 1152. Local
judges in towns are paid salaries.
There was at the common law the greatest sensitiveness over the existence of any
pecuniary interest however small or infinitesimal in the justices of the peace. In
Hawkins, 2 Pleas of the Crown, Bk. 2, ch. 8, 68, 69 we find the following:
'The general rule of law certainly is that justices of the peace ought not to execute their
office in their own case (citing 1 Salk. 396); and even in cases where such proceeding
seems indispensably necessary, as in being publicly assaulted or personally abused,
or their authority otherwise contemned while in the execution of their duty, yet if
another justice be present, his assistance should be required to punish the offender
(Stra. 240).
'And by the common law, if an order of removal were made by two justices, and one of
them was an inhabitant of the parish from which the pauper was removed, such order
was illegal and bad, on the ground that the justice who was an inhabitant, was
interested, as being liable to the poor's rate. Rex v. Great Chart, Burr. S. C. 194, Stra.
1173.'
And this strict principle, unless there is relief by the statute, is seen in modern cases.
Queen v. Recorder of Cambridge, 8 Ellis & Blackburn, 637; Regina v. Hammond, 9
Law Times Reports (N. S.) 423; The Queen v. Rand, Law Reports, 1 Queen's Bench,
230; Queen v. Gaisford (1892) 1 Queen's Bench Division, 381; 19 Halsbury's Laws of
England, 1156.
There was then no usage at common law by which justices of the peace or inferior
judicial officers were paid fees on condition that they convicted the defendants, and
such a practice certainly cannot find support as due process of law in English
precedent. It may be that the principle as stated in Blackstone, book 3, p. 400, that the
king shall neither pay nor receive costs, because it is the king's prerogative not to pay
them to a subject and is beneath his dignity to receive them, was misunderstood and
led, as suggested by Mr. Lewis in his edition of Blackstone (see Lewis' Blackstone,
note No. 60, vol. III, p. 400) to the practice in some states in minor cases of allowing
inferior judges no compensation, except by fees collected of the convicted defendant,
but, whether it did or not, the principle relied on did not support the practice. That
practice has prevailed and still prevails in Arkansas, Kentucky, Nebraska, North
Carolina, Georgia, Ohio, and Texas, and it seems at one time to have obtained in
Indiana, Oregon, Illinois, and Alabama.
In two of these states only has the question been considered by their courts, and it has
been held that provision for payment to the judge of fees only in case of conviction
does not disqualify him. Those are Bennett v. State, 4 Tex. App. 72; Wellmaker v.
Terrell, 3 Ga. App. 791, 60 S. E. 464. There is no discussion in either of the question of
due process of law. The existence of a statute authorizing the practice seems to have
been the controlling consideration. Two other cases are cited. In Ex parte Guerrero, 69
Cal. 88, 10 P. 261, the judge was paid a regular salary fixed by law. The fund out of
which this was paid was increased by fees and fines collected in his court, but there is
no evidence that payment of his salary was dependent on the amount of his collections
or convictions. In Herbert v. Baltimore County, 97 Md. 639, 55 A. 376, the action was
by a justice of the peace against a county for services in criminal cases. A new law
limited him to $10 a month. The statement of the case does not distinctly show that in
convictions he would have had a larger compensation from his costs collected out of
the defendant, but this may be assumed from the argument. His contention was that
the new law was invalid, because it did not give the defendants before him due
process. The court held against him, chiefly on the ground that he must be satisfied
with the compensation the law afforded him. Responding to his argument that the new
law was invalid, because justice would be induced to convict when in justice they
should acquit, the court said:
'We cannot recognize the force of this suggestion, founded as it is upon the
assumption that the justices will violate their oaths and the duties of their office, and
not upon anything that the law authorizes to be done.'
So far as the case goes, it is an authority for the contention of the state, but the issue
thus raised was not considered at length, and was not one which in such an action the
court would be patient to hear pressed by the justice, whose constitutional rights were
not affected. Tyler v. Court, 179 U. S. 405, 409, 21 S. Ct. 206, 45 L. Ed. 252; California
Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 318, 26 S. Ct. 100, 50 L.
Ed. 204.
In the case of Probasco v. Raine, Auditor, 50 Ohio St. 378, 34 N. E. 536, the question
arose whether the fee of 4 per cent. payable to county auditors for placing omitted
property on the duplicate list for taxation, which required investigation and quasi
142
judicial consideration, was invalid. The court held that it was not, and that the objection
urged there could not be based on the argument that a man could not be a judge in his
own case; that the auditor had no case to be adjudged, but that, on the contrary, he
was the taxing officer, before whom other parties were cited to appear and show cause
why they should not bear their equal burden of taxation. The court said that the action
of the auditor was not final, so as to cut off further inquiry, but that the whole case
might be gone into anew by proper proceedings in court. An exactly opposite
conclusion was reached by the United States Circuit Court for the Northern District of
Ohio in Meyers v. Shields, 61 F. 713, 725, et seq.
In other states than those above mentioned the minor courts are paid for their services
by the state or county, regardless of acquittal or conviction, except that in Virginia the
minor courts receive one-half of the usual fees where there is acquittal. Four states
have put into their Constitutions a provision that the state must pay the costs in such
cases in case of acquittal. They are California, Florida, Louisiana, and South Carolina.
The strict common-law rule was adopted in this country as one to be enforced where
nothing but the common law controlled, and citizens and taxpayers have been held
incompetent to sit in suits against the municipal corporation of which they have been
residents. Diveny v. Elmira, 51 N. Y. 506; Corwein v. Hames, 11 Johns. (N. Y.) 76;
Clark v. Lamb, 2 Allen (Mass.) 396; Dively v. Cedar Falls, 21 Iowa, 565; Fulweiler v.
Louis, 61 Mo. 479; Petition of New Boston, 49 N. H. 328; Commonwealth v. McLane, 4
Gray (Mass.) 427; Fine v. St. Louis Public Schools, 30 Mo. 166, 173. With other courts,
however, and with the Legislatures, the strict rule seemed to be inconvenient,
impracticable, and unnecessary, and the view was taken that such remote or minute
interest in the litigation might be declared by the Legislature not to be a reason for
disqualification of a judge or juror.
A case, much cited, in which this conclusion was reached, and in which the old English
corporation cases were considered, was that of City Council v. Pepper, 1 Rich. (S. C.)
364. The recorder of the city of Charleston sentenced a nonresident of the city for
violation of a city ordinance requiring him to take out a license for what he did, or to
pay a fine not exceeding $20. The contention was that the defendant was a
noncorporator and nonresident, and not subject to the jurisdiction of the city court; that
the recorder was a corporator and interested in the penalty, and therefore was not
competent to try the cause. The court said (page 366) in respect to Hesketh v.
Braddock, 3 Burr. 1847, supra:
'It will be remarked that that case depends altogether upon the common law, and if the
city court depended upon the same for its jurisdiction, the objection might be fatal. But
the establishment and jurisdiction of the city court commences with the act of 1801. * *
* By that act it is clothed with the power of trying all offences against the by-laws of the
city, and for that purpose is given concurrent jurisdiction with the Court of Sessions.
This grant of power is from all the people of the state, through their Legislature, and
surely they have the power to dispense with the common-law objection, that the
corporators were interested, and ought not to be intrusted with the enforcement of their
laws against others. The authority given to the city court to try all offenders against the
city ordinances, impliedly declares, that notwithstanding the common-law objection, it
was right had proper to give it the power to enforce the city laws against all offenders.
That there was great reason in this cannot be doubted, when it is remembered that the
interest of the corporators is so minute as not to be even thought of, by sheriff, juror or
judge. It is very much like the interest which similar officers would feel in enforcing a
state law, the sanction of which was a penalty. The sum thus to be recovered goes in
exoneration of some part of the burden of government to which every citizen is
subjected; but such an interest has no effect upon the mind. It is too slight to excite
prejudice against a defendant. The same thing is the case here. For the judge, sheriff
and jurors, are members of a corporation of many thousand members. What interest,
of value, have they in a fine of $20? It would put a most eminent calculator to great
trouble to ascertain the very minute grain of interest which each of these gentlemen
might have. To remove so shadowy and slight an objection, the Legislature thought
proper to clothe the city court, consisting of its judge, clerk, sheriff and jurors, with
authority to try the defendant, and he cannot now object to it.'
And the same view is taken in Commonwealth v. Ryan, 5 Mass. 90; Commonwealth v.
Reed, 1 Gray (Mass.) 472, 475; Thomas v. Mt. Vernon, 9 Ohio, 290; Commissioners v.
Lytle, 3 Ohio, 289; Wheeling v. Black, 25 W. Va. 266, 280; Board of Justices v.
Fennimore, 1 N. J. Law, 190; Foreman v. Marianna, 43 Ark. 324; Cartersville v. Lyon,
69 Ga. 577; Omaha v. Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pick. (Mass.) 104;
Commonwealth v. Emery, 11 Cush. (Mass.) 406; Bennett v. State, 4 Tex. App. 72;
Welmaker v. Terrell, 3 Ga. App. 791, 60 S. E. 464; State v. Craig, 80 Me. 85, 13 A. 129.
Mr. Justice Cooley, in his work on Constitutional Limitations (7th edition, page 594),
points out that the real ground of the ruling in these cases is that:
'Interest is so remote, trifling, and insignificant that it may fairly be supposed to be
incapable of affecting the judgment of or of influencing the conduct of an individual.
And where penalties are imposed, to be recovered only in a municipal court, the judge
or jurors in which would be interested as corporators in the recovery, the law providing
for such recovery must be regarded as precluding the objection of interest.'
But the learned judge then proceeds:
'But, except in cases resting upon such reasons, we do not see how the Legislature
can have any power to abolish a maxim which is among the fundamentals of judicial
authority.'
Referring, then, to a remark in the case of the Matter of Leefe, 2 Barb. Ch. (N. Y.) 39,
that the people of the state, when framing their Constitution, might possibly establish
so great an anomaly, if they saw fit, the learned author says:
'Even this must be deemed doubtful, since the adoption of the fourteenth article of the
Amendments to the federal Constitution, which denies to the state the right to deprive
one of life, liberty, or property, without due process of law.'
From this review we conclude that a system by which an inferior judge is paid for his
service only when he convicts the defendant has not become so embedded by custom
in the general practice, either at common law or in this country, that it can be regarded
as due process of law, unless the costs usually imposed are so small that they may be
properly ignored as within the maxim 'de minimis non curat lex.'
The mayor received for his fees and costs in the present case $12, and from such
costs under the Prohibition Act for seven months he made about $100 a month, in
addition to his salary. We cannot regard the prospect of receipt or loss of such an
emolument in each case as a minute, remote, trifling, or insignificant interest. It is
certainly not fair to each defendant brought before the mayor for the careful and
judicial consideration of his guilt or innocence that the prospect of such a prospective
loss by the mayor should weigh against his aquittal.
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These are not cases in which the penalties and the costs are negligible. The field of
jurisdiction is not that of a small community, engaged in enforcing its own local
regulations. The court is a state agency, imposing substantial punishment, and the
cases to be considered are gathered from the whole county by the energy of the
village marshals and detectives regularly employed by the village for the purpose. It is
not to be treated as a mere village tribunal for village peccadilloes. There are
doubtless mayors who would not allow such a consideration as $12 costs in each case
to affect their judgment in it, but the requirement of due process of law in judicial
procedure is not satisfied by the argument that men of the highest honor and the
greatest self-sacrifice could carry it on without danger of injustice. Every procedure
which would offer a possible temptation to the average man as a judge to forget the
burden of proof required to convict the defendant, or which might lead him not to hold
the balance nice, clear, and true between the state and the accused denies the latter
due process of law.
But the pecuniary interest of the mayor in the result of his judgment is not the only
reason for holding that due process of law is denied to the defendant here. The
statutes were drawn to stimulate small municipalities, in the country part of counties in
which there are large cities, to organize and maintain courts to try persons accused of
violations of the Prohibition Act everywhere in the county. The inducement is offered of
dividing between the state and the village the large fines provided by the law for its
violations. The trial is to be had before a mayor without a jury, without opportunity for
retrial, and with a review confined to questions of law presented by a bill of exceptions,
with no opportunity by the reviewing court to set aside the judgment on the weighing of
evidence, unless it should appear to be so manifestly against the evidence as to
indicate mistake, bias, or willful disregard of duty by the trial court. It specifically
authorizes the village to employ detectives, deputy marshals, and other assistants to
detect crime of this kind all over the county, and to bring offenders before the mayor's
court, and it offers to the village council and its officers a means of substantially adding
to the income of the village to relieve it from further taxation. The mayor is the chief
executive of the village. He supervises all the other executive officers. He is charged
with the business of looking after the finances of the village. It appears from the
evidence in this case, and would be plain if the evidence did not show it, that the law is
calculated to awaken the interest of all those in the village charged with the
responsibility of raising the public money and expending it, in the pecuniarily
successful conduct of such a court. The mayor represents the village and cannot
escape his representative capacity. On the other hand, he is given the judicial duty,
first, of determining whether the defendant is guilty at all; and, second, having found
his guilt, to measure his punishment between $100 as a minimum and $1,000 as a
maximum for first offenses, and $300 as a minimum and $2,000 as a maximum for
second offenses. With his interest as mayor in the financial condition of the village and
his responsibility therefor, might not a defendant with reason say that he feared he
could not get a fair trial or a fair sentence from one who would have so strong a motive
to help his village by conviction and a heavy fine? The old English cases cited above in
the days of Coke and Holt and Mansfield are not nearly so strong. A situation in which
an official perforce occupies two practically and seriously inconsistent positions, one
partisan and the other judicial, necessarily involves a lack of due process of law in the
trial of defendants charged with crimes before him. City of Boston v. Baldwin, 139
Mass. 315, 1 N. E. 417; Florida ex rel. Colcord v. Young, 31 Fla. 594, 12 So. 673, 19 L.
R. A. 636, 34 Am. St. Rep. 41. It is, of course, so common to vest the mayor of villages
with inferior judicial functions that the mere union of the executive power and the
judicial power in him cannot be said to violate due process of law. The minor penalties
usually attaching to the ordinances of a village council, or to the misdemeanors in
which the mayor may pronounce final judgment without a jury, do not involve any such
addition to the revenue of the village as to justify the fear that the mayor would be
influenced in his judicial judgment by that fact. The difference between such a case
and the plan and operation of the statutes before us is so plain as not to call for further
elaboration.
Counsel for the state argue that it has been decided by this court that the Legislature
of a state may provide such system of courts as it chooses, that there is nothing in the
Fourteenth Amendment that requires a jury trial for any offender, that it may give such
territorial jurisdiction to its courts as it sees fit, and therefore that there is nothing
sinister or constitutionally invalid in giving to a village mayor the jurisdiction of a justice
of the peace to try misdemeanors committed anywhere in the county, even though the
mayor presides over a village of 1,100 people and exercises jurisdiction over offenses
committed in a county of 500,000. This is true and is established by the decisions of
this court in Missouri v. Lewis, 101 U. S. 22, 30, 25 L. Ed. 989; In re Claasen, 140 U.
S. 200, 11 S. Ct. 735, 35 L. Ed. 409. See, also, Carey v. State, 70 Ohio St. 121, 70 N.
E. 955. It is also correctly pointed out that it is completely within the power of the
Legislature to dispose of the fines collected in criminal cases as it will, and it may
therefore divide the fines as it does here, one-half of the state and one-half to the
village by whose mayor they are imposed and collected. It is further said with truth that
the Legislature of a state may and often ought to stimulate prosecutions for crime by
offering to those who shall initiate and carry on such prosecutions rewards for thus
acting in the interest of the state and the people. The Legislature may offer rewards or
a percentage of the recovery to informers. United States v. Murphy & Morgan, 16 Pet.
203, 10 L. Ed. 937. It may authorize the employment of detectives. But these principles
do not at all affect the question whether the state, by the operation of the statutes we
have considered, has not vested the judicial power in on who by reason of his interest,
both as an individual and as chief executive of the village, is disqualified to exercise it
in the trial of the defendant.
It is finally argued that the evidence shows clearly that the defendant was guilty and
that he was only fined $100 which was the minimum amount, and therefore that he
cannot complain of a lack of due process, either in his conviction or in the amount of
the judgment. The plea was not guilty and he was convicted. No matter what the
evidence was against him, he had the right to have an impartial judge. He seasonably
raised the objection, and was entitled to halt the trial because of the disqualification of
the judge, which existed both because of his direct pecuniary interest in the outcome,
and because of his official motive to convict and to graduate the fine to help the
financial needs of the village. There were thus presented at the outset both features of
the disqualification.
The judgment of the Supreme Court of Ohio must be reversed, and the cause
remanded for further proceedings not inconsistent with this opinion.
Judgment reversed.
144
[G.R. No. 109920. August 31, 2000
CEFERINO A. SORIANO, Petitioner, v. HON. ADORACION C. ANGELES, in her
capacity as Presiding Judge of the Caloocan City, Regional Trial Court, Branch CXXI,
and RUEL GARCIA, Respondents.
MENDOZA, J.:
This is a petition for certiorari to annul the decision rendered by the Regional Trial
Court, Branch 121, Caloocan City, on March 15, 1993 in Criminal Case No. C-40740
which acquitted private respondent Ruel Garcia of direct assault.
The prosecutions evidence was as follows: Private respondent Ruel Garcia and his
uncle, Pedro Garcia, were members of the Caloocan police. Shortly after midnight on
November 7, 1991, they barged into the barangay hall of Barangay 56, Zone 5 in
Caloocan City, looking for petitioner Ceferino A. Soriano, the barangay captain. Private
respondent gave petitioner fist blows on the face four times with his left hand, while he
poked a gun at him with his right hand, at the same time cursing him, Putang ina mo
cabeza (You son of a bitch chief). Although there were four barangay tanods (Manuel
Montoya, Arturo del Rosario, Ramiro Samson, and Francisco Raton) in the barangay
hall, they could not come to the aid of petitioner because they were held at bay by
Pedro Garcia. The Garcias then left with their companions who had been waiting
outside the hall. Petitioner was treated for his injuries in the hospital.
Private respondent denied petitioners allegations. He testified that he went to the
barangay hall in the evening of November 6, 1991 because his younger brother had
been reportedly arrested and beaten up by petitioner. (It appears that the younger
Garcia was involved in a brawl with Dennis Mones and a certain Ocampo. They were
arrested and taken to the barangay hall. One of the boys, who was apparently drunk,
vomitted while their names were recorded. Petitioner, therefore, ordered the three boys
to be taken to the Ospital ng Kalookan for a check-up.) As private respondent saw
petitioner near the door of the barangay hall, he asked for the whereabouts of his
brother and the reason for the latters arrest. Apparently thinking that private
respondent was trying to intervene in the case he was investigating, petitioner angrily
told private respondent to lay off: Walang pulis pulis dito (Your being a policeman
doesnt pull strings here). When private respondent insisted on going inside the
barangay hall, petitioner blocked him and then pushed him on the chest. Private
respondent also pushed petitioner, causing him to fall on a pile of nightsticks and injure
himself. All the time, private respondent claimed he had his gun tucked at his waist.
Private respondents uncle, Pedro Garcia, then arrived and took him home.
In acquitting private respondent, respondent Judge Adoracion C. Angeles found it
incredible that petitioner did not resist or even say anything when private respondent
allegedly assaulted him and that none of the four barangay tanods who were near him
came to his aid. She thought that if petitioner had indeed been attacked, he would
have suffered more serious injuries than a contusion on the forehead, erythema on the
chest, and a lacerated wound on the lower lip. Respondent judge also excluded from
the evidence the testimonies of petitioner and barangay tanod Manuel Montoya on the
ground that their testimonies had not been formally offered in evidence as required by
Rule 132, 34 to 35 of the Revised Rules on Evidence.
Hence this petition for certiorari. Petitioner alleges that the decision is void because
it was not rendered by an impartial tribunal. He contends that respondent judge was
hell-bent on saving the private respondent from conviction and had pre-judged the
case as shown by the fact that (1) on August 26, 1992, before private respondents
arraignment, she called the parties and their counsels to her chambers and urged
them to settle the case, and, when petitioner refused, she did not set the case for
hearing until after three weeks allegedly to provide a cooling off period; (2) that at the
initial trial on September 15 and 16, 1992, respondent judge again called on the
parties to settle the case. Petitioner alleges that, while respondent judge stated in her
order of September 15, 1992 cancelling the hearing on that date that this was done to
enable Atty. Maria Lelibet Sampaga to study the case as she had been appointed as
private respondents counsel only on that day, the same was actually a pretext, the real
reason being to give private respondent another opportunity to persuade petitioner to
settle the case. The records in fact show that Atty. Sampaga had been private
respondents counsel at the arraignment on August 26, 1992; (3) that respondent judge
excluded the testimonies of petitioner and his witness, Manuel Montoya, for failure of
the prosecution to offer formally the same when the transcript of stenographic notes
shows this was not so and that, at any rate, the defense waived the objection based on
this ground by cross-examining petitioner and Montoya; and (4) that respondent judge
failed to find private respondent guilty despite the testimonies of three eyewitnesses
(barangay tanods Montoya, del Rosario, and Samson). Petitioner therefore prays that
a mistrial be declared and that the case be ordered retried before another judge.
On the other hand, private respondent Ruel Garcia contends that, if at the outset,
petitioner doubted respondent judges impartiality, he should have sought her inhibition
right then and there; that it was not true respondent judge called the parties to her
chambers on August 26, 1992 as only the arraignment took place on that day; that at
said arraignment, his counsel, Atty. Emilio Bermas, was absent for which reason
respondent judge designated Atty. Maria Lelibet S. Sampaga to assist him; that the
schedule of the trial (September 15, 16, and 21, 1992) was not fixed by respondent
judge but by the clerk in charge of the matter, taking into account the schedule of the
other cases assigned to the court; that it was only on the first day of trial on September
15, 1992 that respondent judge first talked to the parties, and, upon learning that both
were public officers, thought it proper to ask them if they were not willing to settle their
dispute, and seeing the parties and their counsels to be receptive, she invited them to
her chambers; that as petitioner later appeared to have second thoughts and, on the
other hand, as Atty. Sampaga needed time to prepare for trial, respondent judge
postponed the trial to the next day, September 16, 1992; that on September 16, 1992,
respondent judge again called the parties to her chambers to see if they had come to
any agreement, but as she was told by petitioner that for him to withdraw his complaint
against the private respondent, he must have to transfer his residence first, thus
implying that he wished the case against private respondent to continue, respondent
judge proceeded with the trial that morning.
Private respondent contends that the instant petition does not have the consent
and conformity of the public prosecutor but was instead filed by the private prosecutor
who does not have the requisite legal personality to question the decision acquitting
him.
Required to comment, the Solicitor General argues that this petition should be
dismissed:
145
 A perusal of the judgment of the trial court showed that the parties were heard
conformably to the norms of due process, evidence was presented by both parties and
duly considered, their arguments were studied, analyzed, and assessed, and judgment
was rendered in which findings of facts and conclusions of law were set forth. These
conclusions of fact or law cannot in any sense be characterized as outrageously wrong
or manifestly mistaken or whimsically or capriciously arrived at. The worst that may
perhaps be said of them is that they are fairly debatable and may even be possibly
erroneous. But they cannot be declared to have been made with grave abuse of
discretion (Bustamante vs. NLRC, 195 SCRA 1991). Clearly, there was no mistrial in
this case which would warrant the nullity of the assailed judgment.[1
The preliminary issue in this case is whether the petition should be dismissed
outright because it was filed without the intervention of the OSG as counsel for the
prosecution.
This question is not a novel one. In the case of People v. Santiago,[2 this Court
held:
The question as to whether or not U.P., as the private offended party, can file this
special civil action for certiorari questioning the validity of said decision of the trial court
should be answered in the affirmative.
It is well-settled that in criminal cases where the offended party is the State, the
interest of the private complainant or the private offended party is limited to the civil
liability. Thus, in the prosecution of the offense, the complainants role is limited to that
of a witness for the prosecution. If a criminal case is dismissed by the trial court or if
there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken
only by the State through the Solicitor General. Only the Solicitor General may
represent the People of the Philippines on appeal. The private offended party or
complainant may not take such appeal. However, the said offended party or
complainant may appeal the civil aspect despite the acquittal of the accused.
In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of
Court wherein it is alleged that the trial court committed a grave abuse of discretion
amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that
the petition may be filed by the person aggrieved. In such case, the aggrieved parties
are the State and the private offended party or complainant. The complainant has an
interest in the civil aspect of the case so he may file such special civil action
questioning the decision or action of the respondent court on jurisdictional grounds. In
so doing, complainant should not bring the action in the name of the People of the
Philippines. The action may be prosecuted in name of said complainant.[3
The above ruling has been reiterated in De la Rosa v. Court of Appeals[4 and
Perez v. Hagonoy Rural Bank, Inc.,5 in which the legal personality of private
complainant to file a special civil action of certiorari questioning the dismissal by the
trial court of a criminal case has been upheld subject to the limitation that the accuseds
right to double jeopardy is not violated.6 As explained by the Court in People v. Court
of Appeals:[7 7
A judgment rendered with grave abuse of discretion or without due process is void,
does not exist in legal contemplation, and, thus, cannot be the source of an acquittal.
However, where the petition demonstrates mere errors in judgment not amounting to
grave abuse of discretion or deprivation of due process, the writ of certiorari cannot
issue. A review of the alleged errors of judgment cannot be made without trampling
upon the right of the accused against double jeopardy.8
In short, petitioner must establish that the judgment of acquittal resulted from a
mistrial so as not to place private respondent, as accused, in double jeopardy.
In only one case has the Court categorically declared a mistrial, and that is the
case of Galman v. Sandiganbayan.[9 Petitioner would have the Court draw
parallelisms between this case and Galman where the Court nullified the judgment of
acquittal of the Sandiganbayan in Criminal Case Nos. 10010 and 10011 entitled
People of the Philippines v. General Luther Custodio, et al.
This cases is, however, a far cry from Galman. There, it was shown that evidence
was suppressed in order to justify the acquittal of the accused. This Court held that the
secret Malacaang conference at which the authoritarian President called together the
Presiding Justice of the Sandiganbayan [Manuel Pamaran] and Tanodbayan
[Bernardo] Fernandez and the entire prosecution panel headed by Deputy Tanodbayan
[Manuel] Herrera and told them how to handle and rig (moro-moro) the trial and the
close monitoring of the entire proceedings to assure the pre-determined ignominious
final outcome are without parallel and precedent in our annals and jurisprudence.[10
In contrast, petitioner does not allege any such irregularity in the trial of private
respondent. He simply claims that respondent judges bias and partiality denied the
prosecution a fair and impartial trial. Why respondent judge was biased for the defense
petitioner does not say. It is noteworthy that petitioner does not even dispute private
respondents allegation that respondent judge was not personally acquainted with him
until she heard the criminal case against him.
It is pertinent at this point to cite certain principles laid down by the Court regarding
the disqualification of a judge for lack of the objectivity that due process requires. It is
settled that mere suspicion that a judge is partial to one of the parties is not enough;
there should be evidence to prove the charge.[11 Bias and prejudice cannot be
presumed, especially weighed against a judges sacred allegation under oath of office
to administer justice without respect to any person and do equal right to the poor and
the rich.[12 There must be a showing of bias and prejudice stemming from an
extrajudicial source resulting in an opinion in the merits on some basis other than what
the judge learned from his participation in the case.[13
The arguments which petitioner advances by way of proof of respondents judges
alleged bias are not persuasive.
Respondent judges efforts to have the parties arrive at an amicable settlement is
not evidence of partiality for private respondent. She could have been motivated by
factors other than a desire to clear private respondent of criminal liability, i.e., the
clearing of her court docket or, as pointed out by the OSG in its comment,[14 in setting
a good example considering that petitioner and private respondent were neighbors
occupying public offices charged with the maintenance of peace and order in the
community.
As for the allegation that the trial was not held until after three weeks to give private
respondent more time to persuade petitioner to amicably settle the case, it has been
shown that it was not respondent judge but court personnel in charge of scheduling
cases who assigned the dates of trial taking into account the court calendar. The
cancellation of the September 15, 1992 hearing, on the other hand, was made to give
146
private respondents counsel, Atty. Maria Lelibet Sampaga, time to study the case and
prepare for trial. Although Atty. Sampaga had once appeared in behalf of private
respondent, it was for the purpose of assisting the latter at the arraignment because
the regular counsel was absent. As new counsel, Atty. Sampaga needed to study the
case. A postponement to the next day, September 16, 1992, was not an unreasonable
request. Indeed, this did not involve resetting the case since September 16, 1992 had
been originally designated as one of the initial trial dates.
Nor is there any showing that respondent judge decided the criminal case on
grounds other than its merits. A reading of her decision acquitting private respondent
shows that the same was made on the basis of her evaluation of the evidence of the
prosecution and of the defense. Because of the conflicting versions of the parties as to
what really happened, her decision was necessarily based on her appreciation of the
credibility of the witnesses for the prosecution and the defense.
True, petitioner is correct in his argument that respondent judge mistakenly
excluded from the evidence his testimony as well as that of prosecution witness
Manuel Montoya on the ground that the same had not been formally offered at the time
they were called to the witness stand. For the fact was that petitioner and Montoya had
been cross-examined at length by the defense and, therefore, the latter had waived
objection to the failure of the prosecution to make an offer of the evidence.[15 It has
been held in Go v. Court of Appeals,[16 however, that divergence of opinion between
the trial judge and a partys counsel as to the admissibility of evidence is not proof of
bias or partiality. Besides, though respondent judge stated in her decision that the
testimonies of petitioner and Montoya cannot be considered by this Court as
constituting part of the evidence for the prosecution, her decision shows that she
actually considered the testimonies in piecing together the prosecutions version of the
events and in evaluating the evidence in the case. The testimonies of petitioner and
Montoya were after all referred to by the other witnesses for the prosecution, namely,
del Rosario and Samson. Thus respondent judges decision reads in pertinent part:
The allegation of the private complainant that he neither resisted the punches of
the accused nor said anything to the latter is quite hard to believe. No rational man
would allow another to hurt him without offering any form of resistance, for he is
instinctively concerned [with] his self-preservation. It is more in consonance with
human nature that when one is hurt, especially if the feeling of innocence is within him,
to immediately retaliate to an unjust act.
Another equally unbelievable allegation is that the four barangay tanods just stood
and watched their barangay captain while he was being mauled. There were four of
them inside the hall yet no one even dared to defend herein private complainant or
stop herein accused. If they could not do it for their barangay captain and inside their
hall, how can they be expected to protect the residents of their barangay outside their
hall?
Furthermore, if herein private complainant was indeed mauled, he should have
suffered a lot more serious injuries than he alleged[ly] incurred. Considering their
allegation that the barangay tanods were guarded at the point of a gun by Pedro
Garcia, herein accused thus had all the time and opportunity to inflict on the private
complainant as many serious injuries as he could. But the results of the medical
examination belie this point.
Well-settled is the rule that the prosecution must rely on the strength of its own
evidence and not on the weakness of the defense (People vs. Dennis Mendoza, 203
SCRA 148, G.R. No. 85176, October 21, 1991). After a thorough examination of the
pieces of evidence presented by the prosecution, the latter failed to fulfill the test of
moral certainty and establish such degree of proof necessary to support conviction. If
the inculpatory facts and circumstances are capable of one or more explanations, one
of which is consistent with innocence and the other consistent with his guilt, then the
evidence does not fulfill the test of moral certainty and is not sufficient to support a
conviction. The constitutional presumption of innocence stands until overthrown by
strong and convincing evidence, one of which will prove guilt beyond reasonable doubt
(People vs. Gina Sahagun, 182 SCRA 91, G.R. No. 62024, February 12, 1990).
The testimonies of the prosecution witnesses are merely unfounded accusations
insufficient to gain conviction. In the case of People vs. Guinto, 184 SCRA 287, G.R.
88400, April 6, 1990, the Supreme Court held: Accusation is not synonymous with
guilt. The accused is protected by the constitutional presumption of innocence which
the prosecution must overcome with contrary proof beyond reasonable doubt. Even if
the defense is weak, the case against the accused must fail if the prosecution is even
weaker. . . . If the prosecution has not sufficiently established the guilt of the accused,
he has a right to be acquitted and released even if he presents naught a shred of
evidence.[17
That respondent judge believed the evidence of the defense more than that of the
prosecution does not indicate that she was biased. She must have simply found the
defense witnesses to be more credible.[18
Indeed, no grave abuse of discretion may be attributed to a court simply because
of its alleged misappreciation of facts and evidence. A writ of certiorari cannot be used
to correct a lower tribunals evaluation of the evidence and factual findings. Thus, in
People v. Court of Appeals,[19 the Court dismissed a petition for certiorari filed by the
prosecution from a decision of the Court of Appeals reversing that of the trial court and
acquitting the accused of homicide and serious physical injuries on the ground that he
acted in self-defense. The Court held:
To show grave abuse of discretion, herein petitioner contends that Respondent
Court of Appeals committed manifest bias and partiality in rendering the assailed
Decision. It claims that Respondent Court ignored and discarded uncontroverted
physical evidence which the trial judge had relied upon. Furthermore, it allegedly erred
in finding that he had base[d] his decision on the testimony of witnesses whose
demeanor he did not personally witness. In addition, it supposedly harped on
insignificant inconsistencies in the testimonies of some prosecution witnesses, while
unquestioningly accepting the private respondents claim of self-defense.
Finally, the solicitor general maintains that the assailed Decision (1) failed to
discuss the effect of Maquilings escape from confinement during the pendency of the
case; (2) shifted the burden of proof on the prosecution to prove Maquilings guilt,
although he admitted killing the victim in self-defense; (3) ignored the physical
evidence particularly the downward trajectory of the bullets that had hit the two victims,
thereby showing that private respondent was still standing when he shot them; and the
shotgun wound sustained by private respondent, which disabled him and rendered him
incapable of shooting the victims.
147
 It is quite obvious from the foregoing allegations that petitioner imputed grave
abuse of discretion to Respondent Court because of the latters supposed
misappreciation and wrongful assessment of factual evidence. However, as earlier
stressed, the present recourse is a petition for certiorari under Rule 65. It is a
fundamental aphorism in law that a review of facts and evidence is not the province of
the extraordinary remedy of certiorari; which is extra ordinem beyond the ambit of
appeal. Stated elsewise, factual matters cannot normally be inquired into by the
Supreme Court in a certiorari proceeding. This Court cannot be tasked to go over the
proofs presented by the parties and analyze, assess and weigh them again, in order to
ascertain if the trial and the appellate courts were correct in according superior credit
to this or that piece of evidence of one party or the other.
The mere fact that a court erroneously decides a case does not necessarily
deprive it of jurisdiction. Thus, assuming arguendo that a court commits a mistake in
its judgment, the error does not vitiate the decision, considering that it has jurisdiction
over the case.
An examination of the 65-page Decision rendered by the Court of Appeals shows
no patent and gross error amounting to grave abuse of discretion. Neither does it show
an arbitrary or despotic exercise of power arising from passion or hostility. . . .[20
Finally, petitioners claim that respondent judge was biased is belied by his failure to
move for respondent judges inhibition. Petitioners claim that he did not do so because
of his belief and desire for said respondent judge to finally return to her normal sense
of fairness is a feeble excuse. His failure to file such motion stands as one more stark
difference between this case and Galman since the private prosecutors in the latter
case lost no time in seeking the disqualification of the members of the Sandiganbayan
on grounds of manifest bias and partiality for the defense.[21
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.
G.R. No. L-12990 January 21, 1918
THE UNITED STATES, Plaintiff-Appellee, vs. LAZARO JAVIER, ET AL., Defendants-
Appellants.
MALCOLM, J.:
We find the proven facts as brought out in the trial of this case to be as follows:
Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao
valued at P150 in his corral situated in the barrio of Trapiche municipality of Tanauan,
Province of Batangas. On the following morning when he went to look after the animal,
he found the gate to the corral open and that the carabao had disappeared. He
reported the matter to the Constabulary, and a patrol of the Constabulary under the
leadership of sergeant Presa, now deceased, on the 20th of November following,
encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de Chavez
leading the carabao. When the ladrones saw the Constabulary, that scattered in all
directions. On the following day, the Constabulary found this carabao tied in front of
the house of one Pedro Monterola in the barrio of Santa Clara, municipality of San
Pablo. The carabao was identified by Doroteo Natividad as the one which had been
taken from his corral on the night of October 22, 1915, and by the Constabulary as the
one seen in the possession of the accused.
As corroborative of such evidence, we have the well-known legal principle, which
as applied to cases of this character is that, although the persons who unlawfully took
a certain carabao are not recognized at the time, and their identity remains entirely
unknown, nevertheless, if the stolen animal is found in the possession of the accused
shortly after the commission of the crime and they make no satisfactory explanation of
such possession they may be properly convicted of the crime. (See U. S. vs. Divino
[1911], 18 Phil., 425.) In the present instance, the attempt of the accused to insinuate
that one of the Constabulary soldiers testified against them falsely because of enmity
is hardly believable.
The foregoing statement of the facts and the law disposes of all but one
assignment of error, namely, that the lower court erred in admitting Exhibit B of the
prosecution as evidence. Exhibit B is the sworn statement of sergeant Presa, now
deceased, whose signature was identified, before the justice of the peace of the
municipality of Santo Tomas, Province of Batangas. Appellant's argument is predicated
on the provision of the Philippine Bill of Rights which says, "That in all criminal
prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face,"
and the provision of the Code of Criminal Procedure, section 15 (5), which says that
"In all criminal prosecutions the defendant shall be entitled: . . . to be confronted at the
trial by and to cross-examine the witnesses against him." With reference to the clause
of the Bill of Rights, which we have quoted, Justice Day said in a case of the Philippine
origin (Dowdell vs. U. S. [1911], 221 U. S., 325) that it "intends to secure the accused
in the right to be tried, so far as facts provable by witnesses are concerned, by only
such witnesses as meet him face to face at the trial, who give their testimony in his
presence, and give to the accused an opportunity of cross-examination. It was
intended to prevent the conviction of the accused upon deposition or ex parte
affidavits, and particularly to preserve the right of the accused to test the recollection of
the witness in the exercise of the right of cross-examination." In other words,
confrontation is essential because cross-examination is essential. A second reason for
148
the prohibition is that a tribunal may have before it the department and appearance of
the witness while testifying. ( U. S. vs. Anastacio [1906], 6 Phil., 413.) The Supreme
Court of the Philippine Islands has applied this constitutional provisions on behalf of
accused persons in a number of cases. (See for example U. S. vs. Tamjuanco [1902],
1 Phil., 374; U. S. vs. Bello [1908], 11 Phil., 526; U. S. vs. De la Cruz [1908], 12 Phil.,
87.) It is for us now to determine whether the present facts entitle the accused to the
protection of the Bill of Rights or whether the facts fall under some exception thereto.
The sworn statement of Presa was not made by question and answer under
circumstances which gave the defense an opportunity to cross-examine the witness.
The proviso of the Code of Criminal Procedure as to confrontation is therefore
inapplicable. Presa's statement again is not the testimony of a witness deceased,
given in a former action between the same parties relating to the same matter.
Consequently, the exception provided by section 298, No. 8, of the Code of Civil
Procedure and relied upon by the prosecution in the lower court is also inapplicable.
Nor is the statement of Presa a dying declaration or a deposition in a former trial or
shown to be a part of the preliminary examination. Under these circumstances, not to
burden the opinion with an extensive citation of authorities, we can rely on the old and
historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div.]) occurring in the year
1696. It appears that a deposition of B., examined by the Mayor of Bristol under oath,
but not in P's presence, was offered. It was objected that B, being dead, the defendant
had lost all opportunity of cross-examining him. The King's Bench consulted with the
Common Pleas, and "it was the opinion of both courts that these deposition should not
be given in evidence, the defendant not being present when they were taken before
the Mayor and so had lost the benefit of a cross-examination." Although we are faced
with the alternative of being unable to utilize the statements of the witness now
deceased, yet if there has been no opportunity for cross-examination and the case is
not one coming within one of the exceptions, the mere necessity alone accepting the
statement will not suffice. In fine, Exhibit B was improperly received in evidence in the
lower court.
With such a resolution of this question, we could, as has been done in other cases,
further find this to be reversible error and remand the case for a new trial. We are
convinced, however, that this would gain the accused nothing except delay for the
testimony of the owner of the carabao and of the two Constabulary soldiers, rebutted
by no reasonable evidence on behalf of the accused, is deemed sufficient to prove
guilt beyond a reasonable doubt.
The facts come under article 518, No. 3, in connection with article 520, as
amended, of the Penal Code. Accordingly the defendants and appellants are each
sentenced to four years, two months, and one day of presidio correccional, with the
accessory penalties provided by law, and to pay one-third part of costs of both
instances; the carabao shall be returned to Doroteo Natividad, if this has not already
been done. So ordered.
Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avancea, JJ., concur.
[G.R. No. L-65366. November 9, 1983.]
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), Petitioner, v.
RAMON BAGATSING, as Mayor of the City of Manila, Respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF EXPRESSION AND
PEACEFUL ASSEMBLY; LIBERTY TO DISCUSS AND MEET WITHOUT
CENSORSHIP UNLESS THERE IS CLEAR DANGER OF A SUBSTANTIVE EVIL.
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.
2. ID.; ID.; ID.; INSEPARABLE RIGHTS THE LIMITATION OF WHICH IS
SUBJECT TO JUDICIAL EXAMINATION. In Thomas v. Collins, 323 US 516 (1945),
the American Supreme Court held that 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 the 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, of other legitimate public interest (Cf. Schneider v. Irvington, 308 US 147
(1939).
3. ID.; ID.; ID.; RIOTOUS CONDUCT MUST BE AVOIDED IN THE EXERCISE OF
THESE CONSTITUTIONAL RIGHTS. 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, 7 Phil. 422, "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 grievances
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 its our scheme of values.
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 4. ID.; ID.; ID.; NO VALID OBJECTION EXISTS ON THE CHOICE OF PLACE
FOR THE MARCH AND RALLY, PROCUREMENT OF LICENSE FOR USE OF
PUBLIC STREETS NOT AN UNCONSTITUTIONAL ABRIDGEMENT OF ONES
CONSTITUTIONAL RIGHT. 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. 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. . . ."
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, 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, . . .," 80 Phil, at 78.
5. ID.; ID.; ID.; FREEDOM OF ACCESS TO PUBLIC PARKS AND STREETS;
PURPOSE OF APPLICANT DETERMINATIVE OF THE USE THEREOF. It is
settled law that as to public places, especially so as to parks and streets, there is
freedom of access. Nor is their use dependent on who is the applicant for the permit,
whether an individual or a group. If it were, then the freedom of access becomes
discriminatory access, giving rise to an equal protection question. The principle under
American doctrines was given utterance by Chief Justice Hughes in these words: "The
question, if the rights of free speech and peaceable assembly are to be preserved, is
not as to the auspices under which the meeting is held but as to its purpose; not as to
the relations of the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects" (De Jorge v. Oregon, 299 US 353,
364 (1937).
6. ID.; ID.; ID.; LICENSING AUTHORITIES ARE NOT INVESTED WITH
ARBITRARY DISCRETION TO ISSUE OR REFUSE LICENSE. There could he
danger to public peace and safety if such a gathering were marked by turbulence. That
would deprive it of its peaceful character. Even then, only the guilty parties should be
held accountable. It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would be granted. White
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 he for the assembly being held there. The exercise of such a right, in
the language of Justice Roberta, speaking for the American Supreme Court, is not to
be "abridged on the plea that it may be exercised in some other place."
7. ID.; ID.; ID.; ID.; NON-EXISTENCE IN CASE AT BAR A CLEAR AND PRESENT
DANGER TO JUSTIFY A DENIAL OF A PERMIT. While the general rule is that a
permit should recognize the right of the applicants to hold their assembly at a public
place of their choice, another place may be designated by the licensing authority if it
be shown that there is a clear and present danger of a substantive evil if no such
change were made. In the Navarro and the Pagkakaisa decisions, G.R. No. L-31687,
February 26, 1970 and G.R. No. 60294, April 30, 1982, this Court was persuaded that
the clear and present danger test was satisfied. The present situation is quite different.
Hence the decision reached by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not suffice.
8. ID.; ID.; ID.; ID.; REFUSAL OR MODIFICATION OF APPLICATION FOR
PERMIT SUBJECT TO CLEAR AND PRESENT DANGER TEST. 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 sad 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.
9. ID.; ID.; ID.; RESPECT AND DEFERENCE ACCORDED TO THESE
PREFERRED RIGHTS. Free speech and peaceable assembly, along with other
intellectual freedom, 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
depaartments rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitiously termed by Justice Holmes "as the
sovereign prerogative of judgment." Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of suds rights, enjoying as they do
precedence and primacy.
10. ID.; ID.; ID.; VIOLATION OF ORDINANCE 7295 NEED NOT BE PASSED
UPON. The issue of the applicability of Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five
hundred (500) feet from any foreign mission or chancery; and for other purposes which
finds support in Article 22 of the Vienna Convention on Diplomatic Relations need not
be passed upon. There was no showing that the distance between the chancery and
the embassy gate is less than 500 feet. Even if it could be shown that such a condition
is satisfied, it does not follow that respondent Mayor could legally act the way he did.
The validity of his denial of the permit sought could still be challenged. It could be
argued that a case of unconstitutional application of such ordinance to the exercise of
the right of peaceable assembly presents itself. As in this case there was no proof that
the distance is less than 500 feet, the need to pass on that issue was obviated.
TEEHANKEE, J., concurring:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF EXPRESSION AND
PEACEFUL ASSEMBLY; DOCTRINE OF PRIMICIAS vz. FUGOSO. The Chief
Justices opinion of the Court reaffirms the doctrine of Primicias v. Fugoso, 80 Phil. 71
150
that "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" and that the
city or town mayors are not conferred "the power to refuse to grant the permit, but only
the discretion, in issuing the permit, to determine or specify the streets or public places
where the parade or procession may pass or the meeting may be held."
2. ID.; ID.; ID.; CLEAR AND PRESENT DANGER RULE, THE SOLE
JUSTIFICATION FOR A LIMITATION ON THE EXERCISE THEREOF. The
procedure for the securing of such permits for peaceable assembly is succinctly set
forth in paragraph 8 of the Courts opinion, with the injunction that "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." The exception of the clear and present danger
rule, which alone would warrant a limitation of these fundamental rights is therein
restated in paragraph 1, thus: "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."
3. ID.; ID.; ID.; ID.; BEFORE DENIAL OF PERMIT, LICENSING AUTHORITY
MUST SHOW EXISTENCE OF REASONABLE GROUND TO BELIEVE THAT THE
DANGER APPREHENDED IS IMMINENT. The burden to show the existence of
grave and imminent danger that would justify adverse action on the application lies on
the mayor as the licensing authority. There must be objective and convincing, not
subjective or conjectural, proof of the existence of such clear and present danger. As
stated in the Courts Resolution of October 25, 1983, which granted the mandatory
injunction as prayed for, "It is essential for the validity of a denial of a permit which
amounts to a previous restraint or censorship that the licensing authority does not rely
solely on his own appraisal of what public welfare, peace or safety may require. To
justify such a limitation, there must be proof of such weight and sufficiency to satisfy
the clear and present danger test. The possibility that subversives may infiltrate the
ranks of the demonstrators is not enough."
4. ID.; ID.; ID.; ASSEMBLY LEADERS SHOULD TAKE NECESSARY MEASURES
TO ENSURE PEACEFUL MARCH AND ASSEMBLY; ISOLATED ACTS OF
DISTURBANCE SHOULD NOT CHARACTERIZE ASSEMBLY AS TUMULTUOUS.
The leaders of the peaceable assembly should take all the necessary measure" to
ensure a peaceful much and assembly and to avoid the possibility of infiltrators and
troublemakers disrupting the same, concommitantly with the duty of the police to
extend protection to the participants "staying at a discreet distance, but ever ready and
alert to perform their duty." But should any disorderly conduct or incidents occur,
whether provoked or otherwise, it is well to recall former Chief Justice Ricardo Paras`
injunction in his concurring opinion in Fugoso, citing the 1907 case of U.S. v. Apurado,
7 Phil. 422, 426, per Carson, J. that such instances of "disorderly conduct by individual
members of a crowd (be not seized) as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities" and render illusory the right of
peaceful assembly.
PLANA, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF EXPRESSION AND
PEACEFUL ASSEMBLY; THE ORDINANCE BEING UNCONSTITUTIONAL CANNOT
BE VALIDLY INVOKED, THE DISTANCE OF THE CHANCERY FROM THE SITUS OF
THE RALLY BEING IMMATERIAL. In my view, without saying that the Ordinance is
obnoxious per se to the constitution, it cannot be validly invoked whenever its
application would collide with a constitutionally guaranteed right such as freedom of
assembly and/or expression, as in the case at bar, regardless of whether the chancery
of any foreign embassy is beyond or within 500 feet from the situs of the rally or
demonstration.
FERNANDO, C.J.:
This Court, in this case of first impression, at least as to some aspects, is called
upon to delineate the boundaries of the protected area of the cognate rights to free
speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor
Ramon Bagatsing. Petitioner, retired Justice J.B.L. Reyes, on behalf of the Anti-Bases
Coalition, sought a permit from the City of Manila to hold a peaceful march and rally on
October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public
park, to the gates of the United States Embassy, hardly two blocks away. Once there,
and in an open space of public property, a short program would be held. 2 During the
course of the oral argument, 3 it was stated that after the delivery of two brief
speeches, a petition based on the resolution adopted on the last day by the
International Conference for General Disarmament, World Peace and the Removal of
All Foreign Military Bases held in Manila, would be presented to a representative of the
Embassy or any of its personnel who may be there so that it may be delivered to the
United States Ambassador. The march would be attended by the local and foreign
participants of such conference. There was likewise an assurance in the petition that in
the exercise of the constitutional rights to free speech and assembly, all the necessary
steps would be taken by it "to ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary
mandatory injunction on October 20, 1983 was due to the fact that as of that date,
petitioner had not been informed of any action taken on his request on behalf of the
organization to hold a rally. On October 25, 1983, the answer of respondent Mayor
was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It
turned out that on October 19, such permit was denied. Petitioner was unaware of
such a fact as the denial was sent by ordinary mail. The reason for refusing a permit
was due to "police intelligence reports which strongly militate against the advisability of
issuing such permit at this time and at the place applied for." 6 To be more specific,
reference was made to "persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations
where a large number of people is expected to attend." 7 Respondent Mayor
suggested, however, in accordance with the recommendation of the police authorities,
that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any
other enclosed area where the safety of the participants themselves and the general
public may be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the answer
was filed. The Court then deliberated on the matter. That same afternoon, a minute
resolution was issued by the Court granting the mandatory injunction prayed for on the
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ground that there was no showing of the existence of a clear and present danger of a
substantive evil that could justify the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino on the ground that the holding
of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such minute resolution reads: "This resolution is
without prejudice to a more extended opinion." 9 Hence this detailed exposition of the
Courts stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate
rights to free speech and peaceful assembly, arising from the denial of a permit. The
Constitution is quite explicit: "No law shall be passed abridging the freedom of speech,
or of the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances." 10 Free speech, like free press, may be
identified with the liberty to discuss publicly and truthfully any matter of public concern
without censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 12 prosecution for
sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a
"clear and present danger of a substantive evil that [the State] has a right to prevent."
16 Freedom of assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. 17 It is entitled to be
accorded the utmost deference and respect. It is 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. 18 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.
19 To paraphrase the opinion of Justice Rutledge, speaking for the majority of the
American Supreme Court in Thomas v. Collins, 20 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. 21
2. Nowhere is the rationale that underlies the freedom of expression and
peaceable assembly better expressed than in this excerpt from an opinion of Justice
Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of
the Enlightenment. Back of the guaranty of free speech lay faith in the power of an
appeal to reason by all the peaceful means for gaining access to the mind. It was in
order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But
utterance in a context of violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not meant to be sheltered
by the Constitution." 22 What was rightfully stressed is the abandonment of reason,
the utterance, whether verbal or printed, being in a context of violence. It must always
be remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to be heard of the person who
feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the
fact that there may be something worth hearing from the dissenter. That is to ensure a
true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of protest, much
less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or
tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of
violence to be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is
rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers." 24 It bears
repeating that for the constitutional right to be invoked, riotous conduct, injury to
property, and acts of vandalism must be avoided. To give free rein to 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.
3. There can be no legal objection, absent the existence of a clear and present
danger of a substantive evil, on the choice of Luneta as the place where the peace
rally would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 "Whenever the title of
streets and parks may rest, they have immemorially been held in trust for the use of
the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use
of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not, in the guise of regulation, be abridged or
denied." 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27
Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, 28 a 1915
decision, where this Court categorically affirmed that plazas or parks and streets are
outside the commerce of man and thus nullified a contract that leased Plaza Soledad
of plaintiff-municipality. Reference was made to such plaza "being a promenade for
public use," 29 which certainly is not the only purpose that it could serve. To repeat,
there can be no valid reason why a permit should not be granted for the 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
152
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, . . ." 30 Nor should the point made by Chief
Justice Hughes in a subsequent portion of the opinion be ignored. "Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized society
maintaining public order without which liberty itself would be lost in the excesses of
unrestricted abuses. The authority of a municipality to impose regulations in order to
assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means
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 desired to promote
the public convenience in the interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances would be entitled to
protection." 31
5. There is a novel aspect to this case. If the rally were confined to Luneta, no
question, as noted, would have arisen. So, too, if the march would end at another park.
As previously mentioned though, there would be a short program upon reaching the
public space between the two gates of the United States Embassy at Roxas
Boulevard. That would be followed by the handing over of a petition based on the
resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines
is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It
was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of
ratification was signed by the President on October 11, 1965, and was thereafter
deposited with the Secretary General of the United Nations on November 15. As of
that date then, it was binding on the Philippines. The second paragraph of its Article 22
reads: "2. The receiving State is under a special duty to take appropriate steps to
protect the premises of the mission against any intrusion or damage and to prevent
any disturbance of the peace of the mission or impairment of its dignity." 32 The
Constitution "adopts the generally accepted principles of international law as part of
the law of the land, . . ." 33 To the extent that the Vienna Convention is a restatement
of the generally accepted principles of international law, it should be a part of the law of
the land. 34 That being the case, if there were a clear and present danger of any
intrusion or damage, or disturbance of the peace of the mission, or impairment of its
dignity, there would be a justification for the denial of the permit insofar as the terminal
point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No.
7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations
within a radius of five hundred (500) feet from any foreign mission or chancery; and for
other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation
as a defense is understandable but not decisive, in view of the primacy accorded the
constitutional rights of free speech and peaceable assembly. Even if shown then to be
applicable, that question still confronts this Court.
6. There is merit to the observation that except as to the novel aspects of a
litigation, the judgment must be confined within the limits of previous decisions. The
law declared on past occasions is, on the whole, a safe guide. So it has been here.
Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued
the minute resolution granting the mandatory injunction allowing the proposed march
and rally scheduled for the next day. That conclusion was inevitable in the absence of
a clear and present danger of a substantive evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional rights of free speech
and peaceable assembly. These rights are assured by our Constitution and the
Universal Declaration of Human Rights. 35 The participants to such assembly,
composed primarily of those in attendance at the International Conference for General
Disarmament, World Peace and the Removal of All Foreign Military Bases would start
from the Luneta, proceeding through Roxas Boulevard to the gates of the United
States Embassy located at the same street. To repeat, it is settled law that as to public
places, especially so as to parks and streets, there is freedom of access. Nor is their
use dependent on who is the applicant for the permit, whether an individual or a group.
If it were, then the freedom of access becomes discriminatory access, giving rise to an
equal protection question. The principle under American doctrines was given utterance
by Chief Justice Hughes in these words: "The question, if the rights of free speech and
peaceable assembly are to be preserved, is not as to the auspices under which the
meeting is held but as to its purpose; not as to the relations of the speakers, but
whether their utterances transcend the bounds of the freedom of speech which the
Constitution protects." 36 There could be danger to public peace and safety if such a
gathering were marked by turbulence. That would deprive it of its peaceful character.
Even then, only the guilty parties should be held accountable. It is true that the
licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion.
While prudence requires that there be a realistic appraisal not of what may possibly
occur but of what may probably occur, given all the relevant circumstances, still the
assumption especially so where the assembly is scheduled for a specific public
place is that the permit must be for the assembly being held there. The exercise of
such a right, in the language of Justice Roberts, speaking for the American Supreme
Court, is not to be "abridged on the plea that it may be exercised in some other place."
37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas
38 and Pagkakaisa ng Manggagawang Pilipino (PMP) v. Bagatsing, 39 called for
application. While the general rule is that a permit should recognize the right of the
applicants to hold their assembly at a public place of their choice, another place may
be designated by the licensing authority if it be shown that there is a clear and present
danger of a substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present danger test
was satisfied. The present situation is quite different. Hence the decision reached by
the Court. The mere assertion that subversives may infiltrate the ranks of the
demonstrators does not suffice. Not that it should be overlooked. There was in this
case, however, the assurance of General Narciso Cabrera, Superintendent, Western
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Police District, Metropolitan Police Force, that the police force is in a position to cope Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high
with such emergency should it arise. That is to comply with its duty to extend estate accorded the rights to free speech and peaceable assembly demands nothing
protection to the participants of such peaceable assembly. Also from him came the less.
commendable admission that there were at least five previous demonstrations at the 10. Ordinarily, the remedy in cases of this character is to set aside the denial or the
Bayview Hotel Area and Plaza Ferguson in front of the United States Embassy where modification of the permit sought and order the respondent official to grant it.
no untoward event occurred. It was made clear by petitioner, through counsel, that no Nonetheless, as there was urgency in this case, the proposed march and rally being
act offensive to the dignity of the United States Mission in the Philippines would take scheduled for the next day after the hearing, this Court, in the exercise of its conceded
place and that, as mentioned at the outset of this opinion, "all the necessary steps authority, granted the mandatory injunction in the resolution of October 25, 1983. It
would be taken by it `to ensure a peaceful march and rally." 40 Assistant Solicitor may be noted that the peaceful character of the peace march and rally on October 26
General Montenegro expressed the view that the presence of policemen may in itself was not marred by any untoward incident. So it has been in other assemblies held
be a provocation. It is a sufficient answer that they should stay at a discreet distance, elsewhere. It is quite reassuring such that both on the part of the national government
but ever ready and alert to cope with any contingency. There is no need to repeat what and the citizens, reason and moderation have prevailed. That is as it should be.
was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city
authorities to provide the proper police protection to those exercising their right to WHEREFORE, the mandatory injunction prayed for is granted. No costs.
peaceable assembly and freedom of expression.
8. By way of a summary. The applicants for a permit to hold an assembly should
inform the licensing authority of the date, the public place where and the time when it
will take place. If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required. Such application should be filed well ahead
in time to enable the public official concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must be heard
on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary, even more so than
on the other departments rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has been so felicitiously termed by Justice
Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights, enjoying
as they do precedence and primacy. Clearly then, to the extent that there may be
inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro
tanto modified. So it was made clear in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of
the City of Manila prohibiting the holding or staging of rallies or demonstrations within a
radius of five hundred (500) feet from any foreign mission or chancery; and for other
purposes. It is to be admitted that it finds support in the previously quoted Article 22 of
the Vienna Convention on Diplomatic Relations. There was no showing, however, that
the distance between the chancery and the embassy gate is less than 500 feet. Even if
it could be shown that such a condition is satisfied, it does not follow that respondent
Mayor could legally act the way he did. The validity of his denial of the permit sought
could still be challenged. It could be argued that a case of unconstitutional application
of such ordinance to the exercise of the right of peaceable assembly presents itself. As
in this case there was no proof that the distance is less than 500 feet, the need to pass
on that issue was obviated. Should it come, then the qualification and observation of
154
[A.M. NO. P-02-1651 : June 22, 2006]
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant, v. SOLEDAD S. ESCRITOR, Respondent.
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad
Escritor once again stands before the Court invoking her religious freedom and her
Jehovah God in a bid to save her family - united without the benefit of legal marriage -
and livelihood. The State, on the other hand, seeks to wield its power to regulate her
behavior and protect its interest in marriage and family and the integrity of the courts
where respondent is an employee. How the Court will tilt the scales of justice in the
case at bar will decide not only the fate of respondent Escritor but of other believers
coming to Court bearing grievances on their free exercise of religion. This case comes
to us from our remand to the Office of the Court Administrator on August 4, 2003.1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada
requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial
Court of Las Pias City, for an investigation of respondent Soledad Escritor, court
interpreter in said court, for living with a man not her husband, and having borne a
child within this live-in arrangement. Estrada believes that Escritor is committing an
immoral act that tarnishes the image of the court, thus she should not be allowed to
remain employed therein as it might appear that the court condones her act.2
Consequently, respondent was charged with committing "disgraceful and immoral
conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative
Code.3
Respondent Escritor testified that when she entered the judiciary in 1999, she was
already a widow, her husband having died in 1998.4 She admitted that she started
living with Luciano Quilapio, Jr. without the benefit of marriage more than twenty years
ago when her husband was still alive but living with another woman. She also admitted
that she and Quilapio have a son.5 But as a member of the religious sect known as the
Jehovah's Witnesses and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with their religious beliefs and
has the approval of her congregation.6 In fact, after ten years of living together, she
executed on July 28, 1991, a "Declaration of Pledging Faithfulness."7
For Jehovah's Witnesses, the Declaration allows members of the congregation
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. As laid out by the
tenets of their faith, the Jehovah's congregation requires that at the time the
declarations are executed, the couple cannot secure the civil authorities' approval of
the marital relationship because of legal impediments. Only couples who have been
baptized and in good standing may execute the Declaration, which requires the
approval of the elders of the congregation. As a matter of practice, the marital status of
the declarants and their respective spouses' commission of adultery are investigated
before the declarations are executed.8 Escritor and Quilapio's declarations were
executed in the usual and approved form prescribed by the Jehovah's Witnesses,9
approved by elders of the congregation where the declarations were executed,10 and
recorded in the Watch Tower Central Office.11
Moreover, the Jehovah's congregation believes that once all legal impediments for
the couple are lifted, the validity of the declarations ceases, and the couple should
legalize their union. In Escritor's case, although she was widowed in 1998, thereby
lifting the legal impediment to marry on her part, her mate was still not capacitated to
remarry. Thus, their declarations remained valid.12 In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain members in good standing in the
congregation.
By invoking the religious beliefs, practices and moral standards of her
congregation, in asserting that her conjugal arrangement does not constitute
disgraceful and immoral conduct for which she should be held administratively liable,
13 the Court had to determine the contours of religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the
origins and development of the religion clauses in the United States (U.S.) and the
Philippines, we held that in resolving claims involving religious freedom (1) benevolent
neutrality or accommodation, whether mandatory or permissive, is the spirit, intent and
framework underlying the religion clauses in our Constitution; and (2) in deciding
respondent's plea of exemption based on the Free Exercise Clause (from the law with
which she is administratively charged), it is the compelling state interest test, the
strictest test, which must be applied.14
Notwithstanding the above rulings, the Court could not, at that time, rule definitively
on the ultimate issue of whether respondent was to be held administratively liable for
there was need to give the State the opportunity to adduce evidence that it has a more
"compelling interest" to defeat the claim of the respondent to religious freedom. Thus,
in the decision dated August 4, 2003, we remanded the complaint to the Office of the
Court Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to
intervene in the case so it can:
(a) examine the sincerity and centrality of respondent's claimed religious belief and
practice;
(b) present evidence on the state's "compelling interest" to override respondent's
religious belief and practice; andlibrary
(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondent's religious freedom.15
It bears stressing, therefore, that the residual issues of the case pertained NOT TO
WHAT APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION
CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS
OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already
been ruled upon prior to the remand, and constitute "the law of the case" insofar as
155
they resolved the issues of which framework and test are to be applied in this case,
and no motion for its reconsideration having been filed.16 The only task that the Court
is left to do is to determine whether the evidence adduced by the State proves its more
compelling interest. This issue involves a pure question of fact.
B. Law of the case
Mr. Justice Carpio's insistence, in his dissent, in attacking the ruling of this case
interpreting the religious clauses of the Constitution, made more than two years ago, is
misplaced to say the least. Since neither the complainant, respondent nor the
government has filed a motion for reconsideration assailing this ruling, the same has
attained finality and constitutes the law of the case. Any attempt to reopen this final
ruling constitutes a crass contravention of elementary rules of procedure. Worse,
insofar as it would overturn the parties' right to rely upon our interpretation which has
long attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive
infirmities in Mr. Justice Carpio's belated attempts to disturb settled issues, and that he
had timely presented his arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World
antecedents of the religion clauses, because "one cannot understand, much less
intelligently criticize the approaches of the courts and the political branches to religious
freedom in the recent past in the United States without a deep appreciation of the roots
of these controversies in the ancient and medieval world and in the American
experience."17 We delved into the conception of religion from primitive times, when it
started out as the state
itself, when the authority and power of the state were ascribed to God.18 Then,
religion developed on its own and became superior to the state,19 its subordinate,20
and even becoming an engine of state policy.21
We ascertained two salient features in the review of religious history: First, with
minor exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of the God of
Love and of the Prince of Peace. Second, likewise with minor exceptions, this history
witnessed the unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the vanguards of
religion in exchange for the favors and mundane benefits conferred by ambitious
princes and emperors in exchange for religion's invaluable service. This was the
context in which the unique experiment of the principle of religious freedom and
separation of church and state saw its birth in American constitutional democracy and
in human history.22
Strictly speaking, the American experiment of freedom and separation was not
translated in the First Amendment. That experiment had been launched four years
earlier, when the founders of the republic carefully withheld from the new national
government any power to deal with religion. As James Madison said, the national
government had no "jurisdiction" over religion or any "shadow of right to intermeddle"
with it.23
The omission of an express guaranty of religious freedom and other natural rights,
however, nearly prevented the ratification of the Constitution. The restriction had to be
made explicit with the adoption of the religion clauses in the First Amendment as they
are worded to this day. Thus, the First Amendment did not take away or abridge any
power of the national government; its intent was to make express the absence of
power.24 It commands, in two parts (with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting
the free exercise thereof.25
The Establishment and Free Exercise Clauses, it should be noted, were not
designed to serve contradictory purposes. They have a single goal to promote freedom
of individual religious beliefs and practices. In simplest terms, the Free Exercise
Clause prohibits government from inhibiting religious beliefs with penalties for religious
beliefs and practice, while the Establishment Clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and practices. In other
words, the two religion clauses were intended to deny government the power to use
either the carrot or the stick to influence individual religious beliefs and practices.26
In sum, a review of the Old World antecedents of religion shows the movement of
establishment of religion as an engine to promote state interests, to the principle of
non-establishment to allow the free exercise of religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses' interpretation and construction in the
United States, not because we are bound by their interpretation, but because the U.S.
religion clauses are the precursors to the Philippine religion clauses, although we have
significantly departed from the U.S. interpretation as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been
volatile and fraught with inconsistencies whether within a Court decision or across
decisions. For while there is widespread agreement regarding the value of the First
Amendment religion clauses, there is an equally broad disagreement as to what these
clauses specifically require, permit and forbid. No agreement has been reached by
those who have studied the religion clauses as regards its exact meaning and the
paucity of records in the U.S. Congress renders it difficult to ascertain its meaning.27
U.S. history has produced two identifiably different, even opposing, strains of
jurisprudence on the religion clauses. First is the standard of separation, which may
take the form of either (a) strict separation or (b) the tamer version of strict neutrality or
separation, or what Mr. Justice Carpio refers to as the second theory of governmental
neutrality. Although the latter form is not as hostile to religion as the former, both are
anchored on the Jeffersonian premise that a "wall of separation" must exist between
the state and the Church to protect the state from the church.28 Both protect the
principle of church-state separation with a rigid reading of the principle. On the other
hand, the second standard, the benevolent neutrality or accommodation, is buttressed
by the view that the wall of separation is meant to protect the church from the state. A
brief review of each theory is in order.
A. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to
protect the state from the church, and the state's hostility towards religion allows no
156
interaction between the two. According to this Jeffersonian view, an absolute barrier to
formal interdependence of religion and state needs to be erected. Religious institutions
could not receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on believers.29
Only the complete separation of religion from politics would eliminate the formal
influence of religious institutions and provide for a free choice among political views,
thus a strict "wall of separation" is necessary.30
Strict separation faces difficulties, however, as it is deeply embedded in American
history and contemporary practice that enormous amounts of aid, both direct and
indirect, flow to religion from government in return for huge amounts of mostly indirect
aid from religion.31 For example, less than twenty-four hours after Congress adopted
the First Amendment's prohibition on laws respecting an establishment of religion,
Congress decided to express its thanks to God Almighty for the many blessings
enjoyed by the nation with a resolution in favor of a presidential proclamation declaring
a national day of Thanksgiving and Prayer.32 Thus, strict separationists are caught in
an awkward position of claiming a constitutional principle that has never existed and is
never likely to.33
The tamer version of the strict separationist view, the strict neutrality or
separationist view, (or, the governmental neutrality theory) finds basis in Everson v.
Board of Education,34 where the Court declared that Jefferson's "wall of separation"
encapsulated the meaning of the First Amendment. However, unlike the strict
separationists, the strict neutrality view believes that the "wall of separation" does not
require the state to be their adversary. Rather, the state must be neutral in its relations
with groups of religious believers and non-believers. "State power is no more to be
used so as to handicap religions than it is to favor them."35 The strict neutrality
approach is not hostile to religion, but it is strict in holding that religion may not be used
as a basis for classification for purposes of governmental action, whether the action
confers rights or privileges or imposes duties or obligations. Only secular criteria may
be the basis of government action. It does not permit, much less require,
accommodation of secular programs to religious belief.36
The problem with the strict neutrality approach, however, is if applied in interpreting
the Establishment Clause, it could lead to a de facto voiding of religious expression in
the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion
in Abington School District v. Schempp,37 strict neutrality could lead to "a brooding
and pervasive devotion to the secular and a passive, or even active, hostility to the
religious" which is prohibited by the Constitution.38 Professor Laurence Tribe
commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea
of a free exercise clause. The Framers, whatever specific applications they may have
intended, clearly envisioned religion as something special; they enacted that vision into
law by guaranteeing the free exercise of religion but not, say, of philosophy or science.
The strict neutrality approach all but erases this distinction. Thus it is not surprising
that the [U.S.] Supreme Court has rejected strict neutrality, permitting and sometimes
mandating religious classifications.39
Thus, the dilemma of the separationist approach, whether in the form of strict
separation or strict neutrality, is that while the Jeffersonian wall of separation "captures
the spirit of the American ideal of church-state separation," in real life, church and state
are not and cannot be totally separate. This is all the more true in contemporary times
when both the government and religion are growing and expanding their spheres of
involvement and activity, resulting in the intersection of government and religion at
many points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different
view of the "wall of separation," associated with Williams, founder of the Rhode Island
colony. Unlike the Jeffersonian wall that is meant to protect the state from the church,
the wall is meant to protect the church from the state.41 This doctrine was expressed
in Zorach v. Clauson,42 which held, viz:
The First Amendment, however, does not say that in every and all respects there
shall be a separation of Church and State. Rather, it studiously defines the manner, the
specific ways, in which there shall be no concert or union or dependency one or the
other. That is the common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not
be required to pay even property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who helped parishioners into
their places of worship would violate the Constitution. Prayers in our legislative halls;
the appeals to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths - these
and all other references to the Almighty that run through our laws, our public rituals,
our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic
could even object to the supplication with which the Court opens each session: "God
save the United States and this Honorable Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We
guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the schedule
of public events, it follows the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their spiritual needs. To
hold that it may not would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen their effective scope of religious
influence.43
Benevolent neutrality recognizes that religion plays an important role in the public
life of the United States as shown by many traditional government practices which, to
strict neutrality, pose Establishment Clause questions. Among these are the inscription
of "In God We Trust" on American currency; the recognition of America as "one nation
under God" in the official pledge of allegiance to the flag; the Supreme Court's time-
honored practice of opening oral argument with the invocation "God save the United
States and this Honorable Court"; and the practice of Congress and every state
legislature of paying a chaplain, usually of a particular Protestant denomination, to lead
representatives in prayer. These practices clearly show the preference for one
theological viewpoint the existence of and potential for intervention by a god over the
contrary theological viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms of poor relief, in the
157
treatment of alcoholism and drug addiction, in foreign aid and other government
activities with strong moral dimension.44
Examples of accommodations in American jurisprudence also abound, including,
but not limited to the U.S. Court declaring the following acts as constitutional: a state
hiring a Presbyterian minister to lead the legislature in daily prayers,45 or requiring
employers to pay workers compensation when the resulting inconsistency between
work and Sabbath leads to discharge;46 for government to give money to religiously-
affiliated organizations to teach adolescents about proper sexual behavior;47 or to
provide religious school pupils with books;48 or bus rides to religious schools;49 or
with cash to pay for state-mandated standardized tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion
clauses are invoked in relation to governmental action, almost invariably in the form of
legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be
challenged as unconstitutional, either because it violates the Free Exercise Clause or
the Establishment Clause or both. This is true whether one subscribes to the
separationist approach or the benevolent neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular
purpose and general applicability, but may incidentally or inadvertently aid or burden
religious exercise. Though the government action is not religiously motivated, these
laws have a "burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental
actions, accommodation of religion may be allowed, not to promote the government's
favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. The purpose of accommodations is to remove a burden on, or
facilitate the exercise of, a person's or institution's religion. As Justice Brennan
explained, the "government [may] take religion into account to exempt, when possible,
from generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."51 In
the ideal world, the legislature would recognize the religions and their practices and
would consider them, when practical, in enacting laws of general application. But when
the legislature fails to do so, religions that are threatened and burdened may turn to
the courts for protection.52
Thus, what is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its
"burdensome effect," whether by the legislature or the courts.53 Most of the free
exercise claims brought to the U.S. Court are for exemption, not invalidation of the
facially neutral law that has a "burdensome" effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the
U.S. blossomed in the case of Sherbert v. Verner,55 which ruled that state regulation
that indirectly restrains or punishes religious belief or conduct must be subjected to
strict scrutiny under the Free Exercise Clause.56 According to Sherbert, when a law of
general application infringes religious exercise, albeit incidentally, the state interest
sought to be promoted must be so paramount and compelling as to override the free
exercise claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to work on
Saturdays on religious grounds. Her claim was denied. She sought recourse in the
Supreme Court. In laying down the standard for determining whether the denial of
benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work constitutes no
conduct prompted by religious principles of a kind within the reach of state legislation.
If, therefore, the decision of the South Carolina Supreme Court is to withstand
appellant's constitutional challenge, it must be either because her disqualification as a
beneficiary represents no infringement by the State of her constitutional right of free
exercise, or because any incidental burden on the free exercise of appellant's religion
may be justified by a "compelling state interest in the regulation of a subject within the
State's constitutional power to regulate. . . ."57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial infringement to the
religious right and a colorable state interest. "(I)n this highly sensitive constitutional
area, '[o]nly the gravest abuses, endangering paramount interests, give occasion for
permissible limitation.' "58 The Court found that there was no such compelling state
interest to override Sherbert's religious liberty. It added that even if the state could
show that Sherbert's exemption would pose serious detrimental effects to the
unemployment compensation fund and scheduling of work, it was incumbent upon the
state to show that no alternative means of regulations would address such detrimental
effects without infringing religious liberty. The state, however, did not discharge this
burden. The Court thus carved out for Sherbert an exemption from the Saturday work
requirement that caused her disqualification from claiming the unemployment benefits.
The Court reasoned that upholding the denial of Sherbert's benefits would force her to
choose between receiving benefits and following her religion. This choice placed "the
same kind of burden upon the free exercise of religion as would a fine imposed against
(her) for her Saturday worship." This germinal case of Sherbert firmly established the
exemption doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions ought to
be granted unless some "compelling state interest" intervenes.
Thus, Sherbert and subsequent cases held that when government action burdens,
even inadvertently, a sincerely held religious belief or practice, the state must justify
the burden by demonstrating that the law embodies a compelling interest, that no less
restrictive alternative exists, and that a religious exemption would impair the state's
ability to effectuate its compelling interest. As in other instances of state action
affecting fundamental rights, negative impacts on those rights demand the highest
level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test resulted in
court-mandated religious exemptions from facially-neutral laws of general application
whenever unjustified burdens were found.60
Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that
religious exemption was in order, notwithstanding that the law of general application
had a criminal penalty. Using heightened scrutiny, the Court overturned the conviction
158
of Amish parents for violating Wisconsin compulsory school-attendance laws. The
Court, in effect, granted exemption from a neutral, criminal statute that punished
religiously motivated conduct. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice of a
legitimate religious belief, it must appear either that the State does not deny the free
exercise of religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection under the Free
Exercise Clause. Long before there was general acknowledgement of the need for
universal education, the Religion Clauses had specially and firmly fixed the right of free
exercise of religious beliefs, and buttressing this fundamental right was an equally firm,
even if less explicit, prohibition against the establishment of any religion. The values
underlying these two provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high social importance.
..
The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is
always outside the protection of the Free Exercise Clause. It is true that activities of
individuals, even when religiously based, are often subject to regulation by the States
in the exercise of their undoubted power to promote the health, safety, and general
welfare, or the Federal government in the exercise of its delegated powers . . . But to
agree that religiously grounded conduct must often be subject to the broad police
power of the State is not to deny that there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of the State to
control, even under regulations of general applicability. . . .This case, therefore, does
not become easier because respondents were convicted for their "actions" in refusing
to send their children to the public high school; in this context belief and action cannot
be neatly confined in logic-tight compartments. . .62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise
clause claims were subject to heightened scrutiny or compelling interest test if
government substantially burdened the exercise of religion; (b) heightened scrutiny or
compelling interest test governed cases where the burden was direct, i.e., the exercise
of religion triggered a criminal or civil penalty, as well as cases where the burden was
indirect, i.e., the exercise of religion resulted in the forfeiture of a government benefit;
63 and (c) the Court could carve out accommodations or exemptions from a facially
neutral law of general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected
conduct beyond speech, press, or worship was included in the shelter of freedom of
religion. Neither Sherbert's refusal to work on the Sabbath nor the Amish parents'
refusal to let their children attend ninth and tenth grades can be classified as conduct
protected by the other clauses of the First Amendment. Second, indirect impositions on
religious conduct, such as the denial of twenty-six weeks of unemployment insurance
benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at
issue in Yoder, were prohibited. Third, as the language in the two cases indicate, the
protection granted was extensive. Only extremely strong governmental interests
justified impingement on religious conduct, as the absolute language of the test of the
Free Exercise Clause suggests.64
Fourth, the strong language was backed by a requirement that the government
provide proof of the important interest at stake and of the dangers to that interest
presented by the religious conduct at issue. Fifth, in determining the injury to the
government's interest, a court was required to focus on the effect that exempting
religious claimants from the regulation would have, rather than on the value of the
regulation in general. Thus, injury to governmental interest had to be measured at the
margin: assuming the law still applied to all others, what would be the effect of
exempting the religious claimant in this case and other similarly situated religious
claimants in the future? Together, the fourth and fifth elements required that facts,
rather than speculation, had to be presented concerning how the government's interest
would be harmed by excepting religious conduct from the law being challenged.65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which
would impose a discipline to prevent manipulation in the balancing of interests. The
fourth and the fifth elements prevented the likelihood of exaggeration of the weight on
the governmental interest side of the balance, by not allowing speculation about the
effects of a decision adverse to those interests nor accepting that those interests
would be defined at a higher level of generality than the constitutional interests on the
other side of the balance.66
Thus, the strict scrutiny and compelling state interest test significantly increased
the degree of protection afforded to religiously motivated conduct. While not affording
absolute immunity to religious activity, a compelling secular justification was necessary
to uphold public policies that collided with religious practices. Although the members of
the U.S. Court often disagreed over which governmental interests should be
considered compelling, thereby producing dissenting and separate opinions in
religious conduct cases, this general test established a strong presumption in favor of
the free exercise of religion.67 Most scholars and courts agreed that under Sherbert
and Yoder, the Free Exercise Clause provided individuals some form of heightened
scrutiny protection, if not always a compelling interest one.68 The 1990 case of
Employment Division, Oregon Department of Human Resources v. Smith,69 drastically
changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use
of peyote, a hallucinogenic substance. Specifically, individuals challenged the state's
determination that their religious use of peyote, which resulted in their dismissal from
employment, was misconduct disqualifying them from receipt of unemployment
compensation benefits.70
Justice Scalia, writing for the majority, rejected the claim that free exercise of
religion required an exemption from an otherwise valid law. Scalia said that "[w]e have
never held that an individual's religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate. On the
contrary, the record of more than a century of our free exercise jurisprudence
contradicts that proposition." 71 Scalia thus declared "that the right of free exercise
does not relieve an individual of the obligation to comply with a 'valid and neutral law of
general applicability of the ground that the law proscribes (or prescribes) conduct that
his religion prescribes (or proscribes).' " 72
159
 Justice Scalia's opinion then reviewed the cases where free exercise challenges
had been upheld'such as Cantwell, Murdock, Follet, Pierce, and Yoder and said that
none involved the free exercise clause claims alone. All involved "the Free Exercise
Clause in conjunction with other constitutional protections, such as freedom of speech
and of the press, or the right of parents to direct the education of their children." 73
The Court said that Smith was distinguishable because it did not involve such a "hybrid
situation," but was a free exercise claim "unconnected with any communicative activity
or parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the context
of the denial of unemployment benefits; it did not create a basis for an exemption from
criminal laws. Scalia wrote that "[e]ven if we were inclined to breathe into Sherbert
some life beyond the unemployment compensation field, we would not apply it to
require exemptions from a generally applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws
of general applicability that burden religion. Justice Scalia said that "[p]recisely
because 'we are a cosmopolitan nation made up of people of almost conceivable
religious preference,' and precisely because we value and protect that religious
divergence, we cannot afford the luxury of deeming presumptively invalid, as applied
to the religious objector, every regulation of conduct that does not protect an interest of
the highest order." The Court said that those seeking religious exemptions from laws
should look to the democratic process for protection, not the courts.76
Smith thus changed the test for the free exercise clause. Strict or heightened
scrutiny and the compelling justification approach were abandoned for evaluating laws
burdening religion; neutral laws of general applicability only have to meet the rational
basis test, no matter how much they burden religion.77
Justice O Connor wrote a concurring opinion sharply criticizing the rejection of the
compelling state interest test, asserting that "(t)he compelling state interest test
effectuates the First Amendment's command that religious liberty is an independent
liberty, that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by clear
and compelling government interest 'of the highest order.' "78 She said that strict
scrutiny is appropriate for free exercise challenges because "[t]he compelling interest
test reflects the First Amendment's mandate of preserving religious liberty to the fullest
extent possible in a pluralistic society." 79
Justice O Connor also disagreed with the majority's description of prior cases and
especially its leaving the protection of minority religions to the political process. She
said that, "First Amendment was enacted precisely to protect the rights of those whose
religious practice are not shared by the majority and may be viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan
and Marshall. The dissenting Justices agreed with Justice O Connor that the majority
had mischaracterized precedents, such as in describing Yoder as a "hybrid" case
rather than as one under the free exercise clause. The dissent also argued that strict
scrutiny should be used in evaluating government laws burdening religion.81
Criticism of Smith was intense and widespread.82 Academics, Justices, and a
bipartisan majority of Congress noisily denounced the decision.83 Smith has the rather
unusual distinction of being one case that is almost universally despised (and this is
not too strong a word) by both the liberals and conservatives.84 Liberals chasten the
Court for its hostility to minority faiths which, in light of Smith's general applicability
rule, will allegedly suffer at the hands of the majority faith whether through outright
hostility or neglect. Conservatives bemoan the decision as an assault on religious
belief leaving religion, more than ever, subject to the caprice of an ever more secular
nation that is increasingly hostile to religious belief as an oppressive and archaic
anachronism.85
The Smith doctrine is highly unsatisfactory in several respects and has been
criticized as exhibiting a shallow understanding of free exercise jurisprudence.86 First,
the First amendment was intended to protect minority religions from the tyranny of the
religious and political majority.87 Critics of Smith have worried about religious
minorities, who can suffer disproportionately from laws that enact majoritarian mores.
88 Smith, in effect would allow discriminating in favor of mainstream religious groups
against smaller, more peripheral groups who lack legislative clout,89 contrary to the
original theory of the First Amendment.90 Undeniably, claims for judicial exemption
emanate almost invariably from relatively politically powerless minority religions and
Smith virtually wiped out their judicial recourse for exemption.91 Second, Smith leaves
too much leeway for pervasive welfare-state regulation to burden religion while
satisfying neutrality. After all, laws not aimed at religion can hinder observance just as
effectively as those that target religion.92 Government impairment of religious liberty
would most often be of the inadvertent kind as in Smith considering the political culture
where direct and deliberate regulatory imposition of religious orthodoxy is nearly
inconceivable. If the Free Exercise Clause could not afford protection to inadvertent
interference, it would be left almost meaningless.93 Third, the Reynolds-Gobitis-
Smith94 doctrine simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions of an individual in
order to pursue some trivial state economic or bureaucratic objective. This is especially
true when there are alternative approaches for the state to effectively pursue its
objective without serious inadvertent impact on religion.95
At bottom, the Court's ultimate concern in Smith appeared to be two-fold: (1) the
difficulty in defining and limiting the term "religion" in today's pluralistic society, and (2)
the belief that courts have no business determining the significance of an individual's
religious beliefs. For the Smith Court, these two concerns appear to lead to the
conclusion that the Free Exercise Clause must protect everything or it must protect
virtually nothing. As a result, the Court perceives its only viable options are to leave
free exercise protection to the political process or to allow a "system in which each
conscience is a law unto itself." 96 The Court's characterization of its choices have
been soundly rejected as false, viz:
If one accepts the Court's assumption that these are the only two viable options,
then admittedly, the Court has a stronger argument. But the Free Exercise Clause
cannot be summarily dismissed as too difficult to apply and this should not be applied
at all. The Constitution does not give the judiciary the option of simply refusing to
interpret its provisions. The First Amendment dictates that free exercise of "religion"
must be protected. Accordingly, the Constitution compels the Court to struggle with the
contours of what constitutes "religion." There is no constitutional opt-out provision for
constitutional words that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring constitutional
mandates. A large area of middle ground exists between the Court's two opposing
alternatives for free exercise jurisprudence. Unfortunately, this middle ground requires
160
the Court to tackle difficult issues such as defining religion and possibly evaluating the
significance of a religious belief against the importance of a specific law. The Court
describes the results of this middle ground where "federal judges will regularly balance
against the importance of general laws the significance of religious practice," and then
dismisses it as a "parade of horribles" that is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of
horribles." Surely not religious individuals; they would undoubtedly prefer their religious
beliefs to be probed for sincerity and significance rather than acquiesce to the Court's
approach of simply refusing to grant any constitutional significance to their beliefs at
all. If the Court is concerned about requiring lawmakers at times constitutionally to
exempt religious individuals from statutory provisions, its concern is misplaced. It is the
lawmakers who have sought to prevent the Court from dismantling the Free Exercise
Clause through such legislation as the [Religious Freedom Restoration Act of 1993],
and in any case, the Court should not be overly concerned about hurting legislature's
feelings by requiring their laws to conform to constitutional dictates. Perhaps the Court
is concerned about putting such burden on judges. If so, it would truly be odd to say
that
requiring the judiciary to perform its appointed role as constitutional interpreters is
a burden no judge should be expected to fulfill.97
Parenthetically, Smith's characterization that the U.S. Court has "never held that an
individual's religious beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the state is free to regulate" an assertion which Mr. Justice
Carpio adopted unequivocally in his dissent has been sharply criticized even implicitly
by its supporters, as blatantly untrue. Scholars who supported Smith frequently did not
do so by opposing the arguments that the Court was wrong as a matter of original
meaning [of the religion clauses] or that the decision conflicted with precedent [i.e. the
Smith decision made shocking use of precedent] those points were often conceded.98
To justify its perversion of precedent, the Smith Court attempted to distinguish the
exemption made in Yoder, by asserting that these were premised on two constitutional
rights combined the right of parents to direct the education of their children and the
right of free exercise of religion. Under the Court's opinion in Smith, the right of free
exercise of religion standing alone would not allow Amish parents to disregard the
compulsory school attendance law, and under the Court's opinion in Yoder, parents
whose objection to the law was not religious would also have to obey it. The fatal flaw
in this argument, however, is that if two constitutional claims will fail on its own, how
would it prevail if combined?99 As for Sherbert, the Smith Court attempted to limit its
doctrine as applicable only to denials of unemployment compensation benefits where
the religiously-compelled conduct that leads to job loss is not a violation of criminal
law. And yet, this is precisely why the rejection of Sherbert was so damaging in its
effect: the religious person was more likely to be entitled to constitutional protection
when forced to choose between religious conscience and going to jail than when
forced to choose between religious conscience and financial loss.100
Thus, the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing the Free
Exercise Clause to disappear.101 So much was the uproar that a majority in Congress
was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993.102
The RFRA was adopted to negate the Smith test and require strict scrutiny for free
exercise claims. Indeed, the findings section of the Act notes that Smith "virtually
eliminated the requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion."103 The Act declares that its purpose is to
restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v.
Yoder, and to guarantee its application in all cases where free exercise of religion is
substantially burdened; and to provide a claim of defense to a person whose religious
exercise is substantially burdened by government.104 The RFRA thus sought to
overrule Smith and make strict scrutiny the test for all free exercise clause claims.105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA
unconstitutional, ruling that Congress had exceeded its power under the Fourteenth
Amendment in enacting the law. The Court ruled that Congress is empowered to enact
laws "to enforce the amendment," but Congress is not "enforcing" when it creates new
constitutional rights or expands the scope of rights.107
City of Boerne also drew public backlash as the U.S. Supreme Court was accused
of lack of judicial respect for the constitutional decision-making by a coordinate branch
of government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through
enshrinement in the Bill of Rights are not thereby banished from the political process.
Just as society believes in the negative protection accorded to the press by the First
Amendment is likely to enact laws that affirmatively foster the dissemination of the
printed word, so also a society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a
nearly unanimous Congress. Contrary to the Court's characterization of the RFRA as a
kind of usurpation of the judicial power to say what the Constitution means, the law
offered no definition of Free Exercise, and on its face appeared to be a procedural
measure establishing a standard of proof and allocating the duty of meeting it. In
effect, the Court ruled that Congress had no power in the area of religion. And yet,
Free Exercise exists in the First Amendment as a negative on Congress. The power of
Congress to act towards the states in matters of religion arises from the Fourteenth
Amendment.108
From the foregoing, it can be seen that Smith, while expressly recognizing the
power of legislature to give accommodations, is in effect contrary to the benevolent
neutrality or accommodation approach. Moreover, if we consider the history of the
incorporation of the religion clauses in the U.S., the decision in Smith is grossly
inconsistent with the importance placed by the framers on religious faith. Smith is
dangerous precedent because it subordinates fundamental rights of religious belief
and practice to all neutral, general legislation. Sherbert recognized the need to protect
religious exercise in light of the massive increase in the size of government, the
concerns within its reach, and the number of laws administered by it. However, Smith
abandons the protection of religious exercise at a time when the scope and reach of
government has never been greater. It has been pointed out that Smith creates the
legal framework for persecution: through general, neutral laws, legislatures are now
able to force conformity on religious minorities whose practice irritate or frighten an
intolerant majority.109
The effect of Smith is to erase entirely the concept of mandatory accommodations,
thereby emasculating the Free Exercise Clause. Smith left religious freedom for many
161
in the hands of the political process, exactly where it would be if the religion clauses
did not exist in the Bill of Rights. Like most protections found in the Bill of Rights, the
religion clauses of the First Amendment are most important to those who cannot
prevail in the political process. The Court in Smith ignores the fact that the protections
found in the Bill of Rights were deemed too important to leave to the political process.
Because mainstream religions generally have been successful in protecting their
interests through the political process, it is the non-mainstream religions that are
adversely affected by Smith. In short, the U.S. Supreme Court has made it clear to
such religions that they should not look to the First Amendment for religious freedom.
110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which
are found to be constitutionally compelled, i.e., required by the Free Exercise Clause;
(b) those which are discretionary or legislative, i.e., not required by the Free Exercise
Clause but nonetheless permitted by the Establishment Clause; and (c) those which
the religion clauses prohibit.111
Mandatory accommodation results when the Court finds that accommodation is
required by the Free Exercise Clause, i.e, when the Court itself carves out an
exemption. This accommodation occurs when all three conditions of the compelling
interest test are met, i.e, a statute or government action has burdened claimant's free
exercise of religion, and there is no doubt as to the sincerity of the religious belief; the
state has failed to demonstrate a particularly important or compelling governmental
goal in preventing an exemption; and that the state has failed to demonstrate that it
used the least restrictive means. In these cases, the Court finds that the injury to
religious conscience is so great and the advancement of public purposes is
incomparable that only indifference or hostility could explain a refusal to make
exemptions. Thus, if the state's objective could be served as well or almost as well by
granting an exemption to those whose religious beliefs are burdened by the regulation,
the Court must grant the exemption. The Yoder case is an example where the Court
held that the state must accommodate the religious beliefs of the Amish who objected
to enrolling their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment compensation
plan must accommodate the religious convictions of Sherbert.112
In permissive accommodation, the Court finds that the State may, but is not
required to, accommodate religious interests. The U.S. Walz case illustrates this
situation where the U.S. Supreme Court upheld the constitutionality of tax exemption
given by New York to church properties, but did not rule that the state was required to
provide tax exemptions. The Court declared that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the noninterference
mandated by the Free Exercise Clause."113 Other examples are Zorach v. Clauson,
114 allowing released time in public schools and Marsh v. Chambers,115 allowing
payment of legislative chaplains from public funds. Parenthetically, the Court in Smith
has ruled that this is the only accommodation allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it
determines that the legislative accommodation runs afoul of the establishment or the
free exercise clause, it results to a prohibited accommodation. In this case, the Court
finds that establishment concerns prevail over potential accommodation interests. To
say that there are valid exemptions buttressed by the Free Exercise Clause does not
mean that all claims for free exercise exemptions are valid.116 An example where
accommodation was prohibited is McCollum v. Board of Education,117 where the
Court ruled against optional religious instruction in the public school premises.118
Given that a free exercise claim could lead to three different results, the question
now remains as to how the Court should determine which action to take. In this regard,
it is the strict scrutiny-compelling state interest test which is most in line with the
benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First
Amendment is that freedom to carry out one's duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Religious freedom is
seen as a substantive right and not merely a privilege against discriminatory
legislation. With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious
belief or practice, free exercise disputes arise commonly when a law that is religiously
neutral and generally applicable on its face is argued to prevent or burden what
someone's religious faith requires, or alternatively, requires someone to undertake an
act that faith would preclude. In essence, then, free exercise arguments contemplate
religious exemptions from otherwise general laws.119
Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling
interest test reflects the First Amendment's mandate of preserving religious liberty to
the fullest extent possible in a pluralistic society.120 Underlying the compelling state
interest test is the notion that free exercise is a fundamental right and that laws
burdening it should be subject to strict scrutiny.121
In its application, the compelling state interest test follows a three-step process,
summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise
of his religious beliefs, the burden shifts to the government to demonstrate that the law
or practice is necessary to the accomplishment of some important (or 'compelling' )
secular objective and that it is the least restrictive means of achieving that objective. If
the plaintiff meets this burden and the government does not, the plaintiff is entitled to
exemption from the law or practice at issue. In order to be protected, the claimant's
beliefs must be 'sincere', but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimant's religious denomination. 'Only
beliefs rooted in religion are protected by the Free Exercise Clause'; secular beliefs,
however sincere and conscientious, do not suffice.122
In sum, the U.S. Court has invariably decided claims based on the religion clauses
using either the separationist approach, or the benevolent neutrality approach. The
benevolent neutrality approach has also further been split by the view that the First
Amendment requires accommodation, or that it only allows permissible legislative
accommodations. The current prevailing view as pronounced in Smith, however, is that
that there are no required accommodation under the First Amendment, although it
permits of legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and
Practice
162
 A. US Constitution and jurisprudence vis - -vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the
Philippines, it is immediately clear that one cannot simply conclude that we have
adopted lock, stock and barrel the religion clauses as embodied in the First
Amendment, and therefore, the U.S. Court's interpretation of the same. Unlike in the
U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme
Court as constituting permissive accommodations, similar exemptions for religion are
mandatory accommodations under our own constitutions. Thus, our 1935, 1973 and
1987 Constitutions contain provisions on tax exemption of church property,123 salary
of religious officers in government institutions,124 and optional religious instruction.125
Our own preamble also invokes the aid of a divine being.126 These constitutional
provisions are wholly ours and have no counterpart in the U.S. Constitution or its
amendments. They all reveal without doubt that the Filipino people, in adopting these
constitutions, manifested their adherence to the benevolent neutrality approach that
requires accommodations in interpreting the religion clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was
erroneous insofar as it asserted that the 1935 Constitution incorporates the Walz ruling
as this case was decided subsequent to the 1935 Constitution is a misreading of the
ponencia. What the ponencia pointed out was that even as early as 1935, or more
than three decades before the U.S. Court could validate the exemption in Walz as a
form or permissible accommodation, we have already incorporated the same in our
Constitution, as a mandatory accommodation.
There is no ambiguity with regard to the Philippine Constitution's departure from
the U.S. Constitution, insofar as religious accommodations are concerned. It is
indubitable that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution.
128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S. Constitution xxxx
Philippine jurisprudence and commentaries on the religious clauses also continued to
borrow authorities from U.S. jurisprudence without articulating the stark distinction
between the two streams of U.S. jurisprudence [i.e., separation and benevolent
neutrality]. One might simply conclude that the Philippine Constitutions and
jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the
two identifiable streams; thus, when a religion clause case comes before the Court, a
separationist approach or a benevolent neutrality approach might be adopted and
each will have U.S. authorities to support it. Or, one might conclude that as the history
of the First Amendment as narrated by the Court in Everson supports the separationist
approach, Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses' history. As a result, in a case where the party claims
religious liberty in the face of a general law that inadvertently burdens his religious
exercise, he faces an almost insurmountable wall in convincing the Court that the wall
of separation would not be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in all three constitutions. It is a
cardinal rule in constitutional construction that the constitution must be interpreted as a
whole and apparently conflicting provisions should be reconciled and harmonized in a
manner that will give to all of them full force and effect. From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality
approach in interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the constitution.129 [citations
omitted]
We therefore reject Mr. Justice Carpio's total adherence to the U.S. Court's
interpretation of the religion clauses to effectively deny accommodations on the sole
basis that the law in question is neutral and of general application. For even if it were
true that "an unbroken line of U.S. Supreme Court decisions" has never held that "an
individual's religious beliefs [do not] excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate," our own Constitutions
have made significant changes to accommodate and exempt religion. Philippine
jurisprudence shows that the Court has allowed exemptions from a law of general
application, in effect, interpreting our religion clauses to cover both mandatory and
permissive accommodations.130
To illustrate, in American Bible Society v. City of Manila,131 the Court granted to
plaintiff exemption from a law of general application based on the Free Exercise
Clause. In this case, plaintiff was required by an ordinance to secure a mayor's permit
and a municipal license as ordinarily required of those engaged in the business of
general merchandise under the city's ordinances. Plaintiff argued that this amounted to
"religious censorship and restrained the free exercise and enjoyment of religious
profession, to wit: the distribution and sale of bibles and other religious literature to the
people of the Philippines." Although the Court categorically held that the questioned
ordinances were not applicable to plaintiff as it was not engaged in the business or
occupation of selling said "merchandise" for profit, it also ruled that applying the
ordinance to plaintiff and requiring it to secure a license and pay a license fee or tax
would impair its free exercise of religious profession and worship and its right of
dissemination of religious beliefs "as the power to tax the exercise of a privilege is the
power to control or suppress its enjoyment." The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious information.
Any restraint of such right can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of any substantive
evil which the State has the right to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division
Superintendent of Schools.132 The case involved several Jehovah's Witnesses who
were expelled from school for refusing to salute the flag, sing the national anthem and
recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving
the religious freedom issue, a unanimous Court overturned an earlier ruling denying
such exemption,133 using the "grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) 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 a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified.134 (emphases supplied)
163
 In these two cases, the Court itself carved out an exemption from a law of general
application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of
Victoriano v. Elizalde Rope Workers Union135 is an example of the application of Mr.
Justice Carpio's theory of permissive accommodation, where religious exemption is
granted by a legislative act. In Victoriano, the constitutionality of Republic Act No. 3350
was questioned. The said R.A. exempt employees from the application and coverage
of a closed shop agreement mandated in another law based on religious objections. A
unanimous Court upheld the constitutionality of the law, holding that "government is
not precluded from pursuing valid objectives secular in character even if the incidental
result would be favorable to a religion or sect." Interestingly, the secular purpose of the
challenged law which the Court upheld was the advancement of "the constitutional
right to the free exercise of religion."136
Having established that benevolent neutrality-accommodation is the framework by
which free exercise cases must be decided, the next question then turned to the test
that should be used in ascertaining the limits of the exercise of religious freedom. In
our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in
cases involving purely conduct based on religious belief, as in the case at bar, the
compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible Society, the
Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The Victoriano case
mentioned the "immediate and grave danger" test as well as the doctrine that a law of
general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano, German went back
to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to
the "clear and present danger" test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the "clear and present danger" or "grave
and immediate danger" test involved, in one form or another, religious speech as this
test is often used in cases on freedom of expression. On the other hand, the Gerona
and German cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority cited by
German has been overruled by Ebralinag which employed the "grave and immediate
danger" test. Victoriano was the only case that employed the "compelling state
interest" test, but as explained previously, the use of the test was inappropriate to the
facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag
and Iglesia ni Cristo where the "clear and present danger" and "grave and immediate
danger" tests were appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been overruled, is not congruent
with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar
to Victoriano, the present case involves purely conduct arising from religious belief.
The "compelling state interest" test is proper where conduct is involved for the whole
gamut of human conduct has different effects on the state's interests: some effects
may be immediate and short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state
would suffice to prevail over the right to religious freedom as this is a fundamental right
that enjoys a preferred position in the hierarchy of rights - "the most inalienable and
sacred of all human rights", in the words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an acknowledgment of
such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to
build a just and humane society and establish a government." As held in Sherbert, only
the gravest abuses, endangering paramount interests can limit this fundamental right.
A mere balancing of interests which balances a right with just a colorable state interest
is therefore not appropriate. Instead, only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The test requires the state to carry a
heavy burden, a compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are destroyed. In determining
which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount interests
of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to
work on Saturdays. In the end, the "compelling state interest" test, by upholding the
paramount interests of the state, seeks to protect the very state, without which,
religious liberty will not be preserved.137 (citations omitted)
At this point, we take note of Mr. Justice Carpio's dissent, which, while loosely
disputing the applicability of the benevolent neutrality framework and compelling state
interest test, states that "[i]t is true that a test needs to be applied by the Court in
determining the validity of a free exercise claim of exemption as made here by
Escritor." This assertion is inconsistent with the position negating the benevolent
neutrality or accommodation approach. If it were true, indeed, that the religion clauses
do not require accommodations based on the free exercise of religion, then there
would be no need for a test to determine the validity of a free exercise claim, as any
and all claims for religious exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive
accommodation and mandatory accommodation is more critically important in
analyzing free exercise exemption claims because it forces the Court to confront how
far it can validly set the limits of religious liberty under the Free Exercise Clause, rather
than presenting the separation theory and accommodation theory as opposite
concepts, and then rejecting relevant and instructive American jurisprudence (such as
the Smith case) just because it does not espouse the theory selected." He then
asserts that the Smith doctrine cannot be dismissed because it does not really
espouse the strict neutrality approach, but more of permissive accommodation.
Mr. Justice Carpio's assertion misses the point. Precisely because the doctrine in
Smith is that only legislative accommodations are allowed under the Free Exercise
Clause, it cannot be used in determining a claim of religion exemption directly
anchored on the Free Exercise Clause. Thus, even assuming that the Smith doctrine
actually espouses the theory of accommodation or benevolent neutrality, the
accommodation is limited to the permissive, or legislative exemptions. It, therefore,
164
cannot be used as a test in determining the claims of religious exemptions directly
under the Free Exercise Clause because Smith does not recognize such exemption.
Moreover, Mr. Justice Carpio's advocacy of the Smith doctrine would effectively render
the Free Exercise protection a fundamental right under our Constitution nugatory
because he would deny its status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step
process. We explained this process in detail, by showing the questions which must be
answered in each step, viz:
'First, "[H]as the statute or government action created a burden on the free
exercise of religion?" The courts often look into the sincerity of the religious belief, but
without inquiring into the truth of the belief because the Free Exercise Clause prohibits
inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimant's
belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory
regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to justify
this infringement of religious liberty?" In this step, the government has to establish that
its purposes are legitimate for the state and that they are compelling. Government
must do more than assert the objectives at risk if exemption is given; it must precisely
show how and to what extent those objectives will be undermined if exemptions are
granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes used the
least intrusive means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state?" The analysis requires the state
to show that the means in which it is achieving its legitimate state objective is the least
intrusive means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest test could result to three
situations of accommodation: First, mandatory accommodation would result if the
Court finds that accommodation is required by the Free Exercise Clause. Second, if
the Court finds that the State may, but is not required to, accommodate religious
interests, permissive accommodation results. Finally, if the Court finds that that
establishment concerns prevail over potential accommodation interests, then it must
rule that the accommodation is prohibited.
One of the central arguments in Mr. Justice Carpio's dissent is that only permissive
accommodation can carve out an exemption from a law of general application. He
posits the view that the law should prevail in the absence of a legislative exemption,
and the Court cannot make the accommodation or exemption.
Mr. Justice Carpio's position is clearly not supported by Philippine jurisprudence.
The cases of American Bible Society, Ebralinag, and Victoriano demonstrate that our
application of the doctrine of benevolent neutrality-accommodation covers not only the
grant of permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general application is possible,
even if anchored directly on an invocation of the Free Exercise Clause alone, rather
than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein
the Court granted an accommodation/exemption to a religious act from the application
of general penal laws, permissive accommodation based on religious freedom has
been granted with respect to one of the crimes penalized under the Revised Penal
Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied
to Mormons an exemption from a general federal law criminalizing polygamy, even if it
was proven that the practice constituted a religious duty under their faith.140 In
contradistinction, Philippine law accommodates the same practice among Moslems,
through a legislative act. For while the act of marrying more than one still constitutes
bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known
as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws
relative to the crime of bigamy "shall not apply to a person married under Muslim law."
Thus, by legislative action, accommodation is granted of a Muslim practice which
would otherwise violate a valid and general criminal law. Mr. Justice Carpio recognized
this accommodation when, in his dissent in our Decision dated August 4, 2003 and
citing Sulu Islamic Association of Masjid Lambayong v. Malik,141 he stated that a
Muslim Judge "is not criminally liable for bigamy because Shari a law allows a Muslim
to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpio's "permissive-
accommodation only" advocacy in this jurisdiction becomes manifest. Having
anchored his argument on the Smith doctrine that "the guaranty of religious liberty as
embodied in the Free Exercise Clause does not require the grant of exemptions from
generally applicable laws to individuals whose religious practice conflict with those
laws," his theory is infirmed by the showing that the benevolent neutrality approach
which allows for both mandatory and permissive accommodations was unequivocally
adopted by our framers in the Philippine Constitution, our legislature, and our
jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only"
stance is the antithesis to the notion that religion clauses, like the other fundamental
liberties found in the Bill or Rights, is a preferred right and an independent source of
right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in
Sherbert is not applicable when the law in question is a generally applicable criminal
law. Stated differently, even if Mr. Justice Carpio conceded that there is no question
that in the Philippine context, accommodations are made, the question remains as to
how far the exemptions will be made and who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only
the question of mandatory accommodation is uncertain, for Philippine law and
jurisprudence have, in fact, allowed legislative accommodation. Second, the power of
the Courts to grant exemptions in general (i.e., finding that the Free Exercise Clause
required the accommodation, or mandatory accommodations) has already been
decided, not just once, but twice by the Court. Thus, the crux of the matter is whether
this Court can make exemptions as in Ebralinag and the American Bible Society, in
cases involving criminal laws of general application.
165
 We hold that the Constitution itself mandates the Court to do so for the following
reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to
the Philippine religion clauses, the benevolent neutrality-accommodation approach in
Philippine jurisdiction is more pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of
mandatory accommodations, was to address the "inadvertent burdensome effect" that
an otherwise facially neutral law would have on religious exercise. Just because the
law is criminal in nature, therefore, should not bring it out of the ambit of the Free
Exercise Clause. As stated by Justice O Connor in her concurring opinion in Smith,
"[t]here is nothing talismanic about neutral laws of general applicability or general
criminal prohibitions, for laws neutral towards religion can coerce a person to violate
his religious conscience or intrude upon his religious duties just as effectively as laws
aimed at religion."142
Third, there is wisdom in accommodation made by the Court as this is the recourse
of minority religions who are likewise protected by the Free Exercise Clause.
Mandatory accommodations are particularly necessary to protect adherents of minority
religions from the inevitable effects of majoritarianism, which include ignorance and
indifference and overt hostility to the minority. As stated in our Decision, dated August
4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the
majority, thus not infrequently, they come into conflict with the religious scruples of
those holding different world views, even in the absence of a deliberate intent to
interfere with religious practice. At times, this effect is unavoidable as a practical matter
because some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that only indifference or
hostility could explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such exemptions when
the need is brought to their attention, but this may not always be the case when the
religious practice is either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allows accommodations
prevents needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation that requires
accommodations extends this treatment to religious faiths that are less able to protect
themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien
concept, nor will it be applied for the first time, as an exemption of such nature, albeit
by legislative act, has already been granted to Moslem polygamy and the criminal law
of bigamy.
Finally, we must consider the language of the Religion Clauses vis - -vis the
other fundamental rights in the Bill of Rights. It has been noted that unlike other
fundamental rights like the right to life, liberty or property, the Religion Clauses are
stated in absolute terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free speech is comparable in its
absolute grant. Given the unequivocal and unqualified grant couched in the language,
the Court cannot simply dismiss a claim of exemption based on the Free Exercise
Clause, solely on the premise that the law in question is a general criminal law.143 If
the burden is great and the sincerity of the religious belief is not in question, adherence
to the benevolent neutrality-accommodation approach require that the Court make an
individual determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-
accommodation approach does not mean that the Court ought to grant exemptions
every time a free exercise claim comes before it. This is an erroneous reading of the
framework which the dissent of Mr. Justice Carpio seems to entertain. Although
benevolent neutrality is the lens with which the Court ought to view religion clause
cases, the interest of the state should also be afforded utmost protection. This is
precisely the purpose of the test to draw the line between mandatory, permissible and
forbidden religious exercise. Thus, under the framework, the Court cannot simply
dismiss a claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this
precisely is the protection afforded by the religion clauses of the Constitution.144 As
stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the
difficult questions of judgment in determining the degree of burden on religious
practice or importance of the state interest or the sufficiency of the means adopted by
the state to pursue its interest, the Court can set a doctrine on the ideal towards which
religious clause jurisprudence should be directed. We here lay down the doctrine that
in Philippine jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent neutrality is
the launching pad from which the Court should take off in interpreting religion clause
cases. The ideal towards which this approach is directed is the protection of religious
liberty "not only for a minority, however small - not only for a majority, however large
but for each of us" to the greatest extent possible within flexible constitutional limits.
145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As
mentioned, what remained to be resolved, upon which remand was necessary,
pertained to the final task of subjecting this case to the careful application of the
compelling state interest test, i.e., determining whether respondent is entitled to
exemption, an issue which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal
of the Hearing Officer's report,146 along with the evidence submitted by the OSG, this
case is once again with us, to resolve the penultimate question of whether respondent
should be found guilty of the administrative charge of "disgraceful and immoral
conduct." It is at this point then that we examine the report and documents submitted
by the hearing officer of this case, and apply the three-step process of the compelling
state interest test based on the evidence presented by the parties, especially the
government.
On the sincerity of religious belief, the Solicitor General categorically concedes that
the sincerity and centrality of respondent's claimed religious belief and practice are
beyond serious doubt.147 Thus, having previously established the preliminary
conditions required by the compelling state interest test, i.e., that a law or government
166
practice inhibits the free exercise of respondent's religious beliefs, and there being no
doubt as to the sincerity and centrality of her faith to claim the exemption based on the
free exercise clause, the burden shifted to the government to demonstrate that the law
or practice justifies a compelling secular objective and that it is the least restrictive
means of achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the
gravest abuses, endangering paramount interests" which could limit or override
respondent's fundamental right to religious freedom. Neither did the government exert
any effort to show that the means it seeks to achieve its legitimate state objective is
the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking - The September 30, 2003 Letter to the OSG
of Bro. Raymond B. Leach, Legal Representative of the Watch Tower Bible and Tract
Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and
centrality of respondent's claimed religious belief and practice.
2. Exhibit "B-OSG" and submarking - The duly notarized certification dated
September 30, 2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent's
claimed religious belief and practice; and (2) to prove that the Declaration of Pledging
Faithfulness, being a purely internal arrangement within the congregation of the
Jehovah's Witnesses, cannot be a source of any legal protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a
compelling interest to override respondent's claimed religious belief and practice, in
order to protect marriage and the family as basic social institutions. The Solicitor
General, quoting the Constitution148 and the Family Code,149 argues that marriage
and the family are so crucial to the stability and peace of the nation that the conjugal
arrangement embraced in the Declaration of Pledging Faithfulness should not be
recognized or given effect, as "it is utterly destructive of the avowed institutions of
marriage and the family for it reduces to a mockery these legally exalted and socially
significant institutions which in their purity demand respect and dignity."150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor
General in so far as he asserts that the State has a compelling interest in the
preservation of marriage and the family as basic social institutions, which is ultimately
the public policy underlying the criminal sanctions against concubinage and bigamy.
He also argues that in dismissing the administrative complaint against respondent,
"the majority opinion effectively condones and accords a semblance of legitimacy to
her patently unlawful cohabitation..." and "facilitates the circumvention of the Revised
Penal Code." According to Mr. Justice Carpio, by choosing to turn a blind eye to
respondent's criminal conduct, the majority is in fact recognizing a practice, custom or
agreement that subverts marriage. He argues in a similar fashion as regards the
state's interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the
institutions of marriage and the family, or even in the sound administration of justice.
Indeed, the provisions by which respondent's relationship is said to have impinged,
e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code,
Articles 334 and 349 of the Revised Penal Code, and even the provisions on marriage
and family in the Civil Code and Family Code, all clearly demonstrate the State's need
to protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of
the fundamental rights in our Constitution. It is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred of
human rights," in the words of Jefferson. Hence, it is not enough to contend that the
state's interest is important, because our Constitution itself holds the right to religious
freedom sacred. The State must articulate in specific terms the state interest involved
in preventing the exemption, which must be compelling, for only the gravest abuses,
endangering paramount interests can limit the fundamental right to religious freedom.
To rule otherwise would be to emasculate the Free Exercise Clause as a source of
right by itself.
Thus, it is not the State's broad interest in "protecting the institutions of marriage
and the family," or even "in the sound administration of justice" that must be weighed
against respondent's claim, but the State's narrow interest in refusing to make an
exception for the cohabitation which respondent's faith finds moral. In other words, the
government must do more than assert the objectives at risk if exemption is given; it
must precisely show how and to what extent those objectives will be undermined if
exemptions are granted.151 This, the Solicitor General failed to do.
To paraphrase Justice Blackmun's application of the compelling interest test, the
State's interest in enforcing its prohibition, in order to be sufficiently compelling to
outweigh a free exercise claim, cannot be merely abstract or symbolic. The State
cannot plausibly assert that unbending application of a criminal prohibition is essential
to fulfill any compelling interest, if it does not, in fact, attempt to enforce that
prohibition. In the case at bar, the State has not evinced any concrete interest in
enforcing the concubinage or bigamy charges against respondent or her partner. The
State has never sought to prosecute respondent nor her partner. The State's asserted
interest thus amounts only to the symbolic preservation of an unenforced prohibition.
Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their
concurring opinions in our Decision, dated August 4, 2003, to deny the exemption
would effectively break up "an otherwise ideal union of two individuals who have
managed to stay together as husband and wife [approximately twenty-five years]" and
have the effect of defeating the very substance of marriage and the family.
The Solicitor General also argued against respondent's religious freedom on the
basis of morality, i.e., that "the conjugal arrangement of respondent and her live-in
partner should not be condoned because adulterous relationships are constantly
frowned upon by society";152 and "that State laws on marriage, which are moral in
nature, take clear precedence over the religious beliefs and practices of any church,
religious sect or denomination on marriage. Verily, religious beliefs and practices
should not be permitted to override laws relating to public policy such as those of
marriage."153
The above arguments are mere reiterations of the arguments raised by Mme.
Justice Ynares-Santiago in her dissenting opinion to our Decision dated August 4,
2003, which she offers again in toto. These arguments have already been addressed
in our decision dated August 4, 2003.154 In said Decision, we noted that Mme. Justice
Ynares-Santiago's dissenting opinion dwelt more on the standards of morality, without
167
categorically holding that religious freedom is not in issue.155 We, therefore, went into
a discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a religion,
including the morality it sanctions.156 Thus, when the law speaks of "immorality" in the
Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers,
157 or "public morals" in the Revised Penal Code,158 or "morals" in the New Civil
Code,159 or "moral character" in the Constitution,160 the distinction between public
and secular morality on the one hand, and religious morality, on the other, should be
kept in mind;161
(b) Although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not
offend compelling state interests;162
(c) The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bar should be understood
only in this realm where it has authority.163
(d) Having distinguished between public and secular morality and religious morality,
the more difficult task is determining which immoral acts under this public and secular
morality fall under the phrase "disgraceful and immoral conduct" for which a
government employee may be held administratively liable.164 Only one conduct is in
question before this Court, i.e., the conjugal arrangement of a government employee
whose partner is legally married to another which Philippine law and jurisprudence
consider both immoral and illegal.165
(e) While there is no dispute that under settled jurisprudence, respondent's conduct
constitutes "disgraceful and immoral conduct," the case at bar involves the defense of
religious freedom, therefore none of the cases cited by Mme. Justice Ynares-Santiago
apply.166 There is no jurisprudence in Philippine jurisdiction holding that the defense
of religious freedom of a member of the Jehovah's Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery, concubinage or
some other law. We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and
punishable by law.167
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging
respondent with conduct prejudicial to the best interest of the service, and we reiterate
that the dissent offends due process as respondent was not given an opportunity to
defend herself against the charge of "conduct prejudicial to the best interest of the
service." Indeed, there is no evidence of the alleged prejudice to the best interest of
the service.168
Mr. Justice Carpio's slippery slope argument, on the other hand, is non-sequitur. If
the Court grants respondent exemption from the laws which respondent Escritor has
been charged to have violated, the exemption would not apply to Catholics who have
secured church annulment of their marriage even without a final annulment from a civil
court. First, unlike Jehovah's Witnesses, the Catholic faith considers cohabitation
without marriage as immoral. Second, but more important, the Jehovah's Witnesses
have standards and procedures which must be followed before cohabitation without
marriage is given the blessing of the congregation. This includes an investigative
process whereby the elders of the congregation verify the circumstances of the
declarants. Also, the Declaration is not a blanket authority to cohabit without marriage
because once all legal impediments for the couple are lifted, the validity of the
Declaration ceases, and the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative.
Nevertheless, insofar as he raises the issue of equality among religions, we look to the
words of the Religion Clauses, which clearly single out religion for both a benefit and a
burden: "No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof' " On its face, the language grants a unique advantage to
religious conduct, protecting it from governmental imposition; and imposes a unique
disadvantage, preventing the government from supporting it. To understand this as a
provision which puts religion on an equal footing with other bases for action seems to
be a curious reading. There are no "free exercise" of "establishment" provisions for
science, sports, philosophy, or family relations. The language itself thus seems to
answer whether we have a paradigm of equality or liberty; the language of the Clause
is clearly in the form of a grant of liberty.169
In this case, the government's conduct may appear innocent and nondiscriminatory
but in effect, it is oppressive to the minority. In the interpretation of a document, such
as the Bill of Rights, designed to protect the minority from the majority, the question of
which perspective is appropriate would seem easy to answer. Moreover, the text,
history, structure and values implicated in the interpretation of the clauses, all point
toward this perspective. Thus, substantive equality a reading of the religion clauses
which leaves both politically dominant and the politically weak religious groups equal in
their inability to use the government (law) to assist their own religion or burden
others'makes the most sense in the interpretation of the Bill of Rights, a document
designed to protect minorities and individuals from mobocracy in a democracy (the
majority or a coalition of minorities).170
As previously discussed, our Constitution adheres to the benevolent neutrality
approach that gives room for accommodation of religious exercises as required by the
Free Exercise Clause.171 Thus, in arguing that respondent should be held
administratively liable as the arrangement she had was "illegal per se because, by
universally recognized standards, it is inherently or by its very nature bad, improper,
immoral and contrary to good conscience,"172 the Solicitor General failed to
appreciate that benevolent neutrality could allow for accommodation of morality based
on religion, provided it does not offend compelling state interests.173
Finally, even assuming that the OSG has proved a compelling state interest, it has
to further demonstrate that the state has used the least intrusive means possible so
that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state end
that imposes as little as possible on religious liberties.174 Again, the Solicitor General
utterly failed to prove this element of the test. Other than the two documents offered as
cited above which established the sincerity of respondent's religious belief and the fact
that the agreement was an internal arrangement within respondent's congregation, no
iota of evidence was offered. In fact, the records are bereft of even a feeble attempt to
procure any such evidence to show that the means the state adopted in pursuing this
compelling interest is the least restrictive to respondent's religious freedom.
168
 Thus, we find that in this particular case and under these distinct circumstances,
respondent Escritor's conjugal arrangement cannot be penalized as she has made out
a case for exemption from the law based on her fundamental right to freedom of
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 such state interest exists, man must be
allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS
MEDIA SERVICES, INC., Petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF
LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE
ADVOCATE GENERAL, ET AL., Respondents.
ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with preliminary
mandatory and prohibitory injunction is the validity of two [2] search warrants issued on
December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the
then Court of First Instance of Rizal [Quezon City], under which the premises known
as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building,
Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We
Forum" newspapers, respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in the printing,
publication and distribution of the said newspapers, as well as numerous papers,
documents, books and other written literature alleged to be in the possession and
control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper,
were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory
injunction be issued for the return of the seized articles, and that respondents,
"particularly the Chief Legal Officer, Presidential Security Command, the Judge
Advocate General, AFP, the City Fiscal of Quezon City, their representatives,
assistants, subalterns, subordinates, substitute or successors" be enjoined from using
the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other
accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City,
entitled People v. Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the
petition. The plea for preliminary mandatory and prohibitory injunction was set for
hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor
General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners'
prayer for a writ of preliminary mandatory injunction, manifested that respondents "will
not use the aforementioned articles as evidence in the aforementioned case until final
resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this
manifestation, the prayer for preliminary prohibitory injunction was rendered moot and
academic.
Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the quashal of the
search warrants before respondent judge. Indeed, petitioners, before impugning the
validity of the warrants before this Court, should have filed a motion to quash said
warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we
take cognizance of this petition in view of the seriousness and urgency of the
constitutional issues raised not to mention the public interest generated by the search
of the "We Forum" offices, which was televised in Channel 7 and widely publicized in
169
all metropolitan dailies. The existence of this special circumstance justifies this Court
to exercise its inherent power to suspend its rules. In the words of the revered Mr.
Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always
in the power of the court [Supreme Court] to suspend its rules or to except a particular
case from its operation, whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches.
Considerable stress is laid on the fact that while said search warrants were issued on
December 7, 1982, the instant petition impugning the same was filed only on June 16,
1983 or after the lapse of a period of more than six [6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time
to do that which, by exercising due diligence, could or should have been done earlier.
It is negligence or omission to assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either has abandoned it or declined to
assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in the
filing of the petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half
a year after the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had waited
this long to bring their case to court, it was because they tried at first to exhaust other
remedies. The events of the past eleven fill years had taught them that everything in
this country, from release of public funds to release of detained persons from custody,
has become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close to the
President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel
Antonio Coronet asking the return at least of the printing equipment and vehicles. And
after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and
Legal Officer of the Presidential Security Command, they were further encouraged to
hope that the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to come to Court.
[pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial
system, We find no ground to punish or chastise them for an error in judgment. On the
contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the
presumption that they had abandoned their right to the possession of the seized
property, thereby refuting the charge of laches against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used
and marked as evidence some of the seized documents in Criminal Case No. Q-
022872, he is now estopped from challenging the validity of the search warrants. We
do not follow the logic of respondents. These documents lawfully belong to petitioner
Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds.
The fact that he has used them as evidence does not and cannot in any way affect the
validity or invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the
search warrants in question.
1. Petitioners fault respondent judge for his alleged failure to conduct an
examination under oath or affirmation of the applicant and his witnesses, as mandated
by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules
of Court . 6 This objection, however, may properly be considered moot and academic,
as petitioners themselves conceded during the hearing on August 9, 1983, that an
examination had indeed been conducted by respondent judge of Col. Abadilla and his
witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two
distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS
Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the
execution of Search Warrant No. 20-82[b] at the latter address on the ground that the
two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was
allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3,
Project 6, Quezon City. This assertion is based on that portion of Search Warrant No.
20- 82[b] which states:
Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended and he is
keeping and concealing the same at 19 Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search
warrants were applied for and issued because the purpose and intent were to search
two distinct premises. It would be quite absurd and illogical for respondent judge to
have issued two warrants intended for one and the same place. Besides, the
addresses of the places sought to be searched were specifically set forth in the
application, and since it was Col. Abadilla himself who headed the team which
executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which
Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building,
Quezon Avenue, Quezon City, which address appeared in the opening paragraph of
the said warrant. 7 Obviously this is the same place that respondent judge had in mind
when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be
searched with sufficient particularity, it has been held "that the executing officer's prior
knowledge as to the place intended in the warrant is relevant. This would seem to be
especially true where the executing officer is the affiant on whose affidavit the warrant
had issued, and when he knows that the judge who issued the warrant intended the
building described in the affidavit, And it has also been said that the executing officer
may look to the affidavit in the official court file to resolve an ambiguity in the warrant
as to the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that although
the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his
co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc.
were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that
may be seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. - A search warrant may be issued for the
search and seizure of the following personal property:
170
 [a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the offense; and
[c] Property used or intended to be used as the means of committing an offense.
The above rule does not require that the property to be seized should be owned by
the person against whom the search warrant is directed. It may or may not be owned
by him. In fact, under subsection [b] of the above-quoted Section 2, one of the
properties that may be seized is stolen property. Necessarily, stolen property must be
owned by one other than the person in whose possession it may be at the time of the
search and seizure. Ownership, therefore, is of no consequence, and it is sufficient
that the person against whom the warrant is directed has control or possession of the
property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in
relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized
under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines,
"machinery, receptables, instruments or implements intended by the owner of the
tenement for an industry or works which may be carried on in a building or on a piece
of land and which tend directly to meet the needs of the said industry or works" are
considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal
provision was invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property or plant,
but not so when placed by a tenant, usufructuary, or any other person having only a
temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or
building on which the machineries were placed. This being the case, the machineries
in question, while in fact bolted to the ground remain movable property susceptible to
seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon
application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10
The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and
Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under
Col. Abadilla which conducted a surveillance of the premises prior to the filing of the
application for the search warrants on December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents could
not have provided sufficient basis for the finding of a probable cause upon which a
warrant may validly issue in accordance with Section 3, Article IV of the 1973
Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search is
defined as such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place sought to be searched. And
when the search warrant applied for is directed against a newspaper publisher or
editor in connection with the publication of subversive materials, as in the case at bar,
the application and/or its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is intending to publish.
Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's
application that petitioner "is in possession or has in his control printing equipment and
other paraphernalia, news publications and other documents which were used and are
all continuously being used as a means of committing the offense of subversion
punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of
law and does not satisfy the requirements of probable cause. Bereft of such particulars
as would justify a finding of the existence of probable cause, said allegation cannot
serve as basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the
statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango,
"that the evidence gathered and collated by our unit clearly shows that the premises
above- mentioned and the articles and things above-described were used and are
continuously being used for subversive activities in conspiracy with, and to promote
the objective of, illegal organizations such as the Light-a-Fire Movement, Movement
for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of the
complainant and the witnesses he may produce; 14 the Constitution requires no less
than personal knowledge by the complainant or his witnesses of the facts upon which
the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance,
15 this Court ruled that "the oath required must refer to the truth of the facts within the
personal knowledge of the petitioner or his witnesses, because the purpose thereof is
to convince the committing magistrate, not the individual making the affidavit and
seeking the issuance of the warrant, of the existence of probable cause." As couched,
the quoted averment in said joint affidavit filed before respondent judge hardly meets
the test of sufficiency established by this Court in Alvarez case.
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general warrants. The
search warrants describe the articles sought to be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters,
cabinets, tables, communications/recording equipment, tape recorders, dictaphone
and the like used and/or connected in the printing of the "WE FORUM" newspaper and
any and all documents communication, letters and facsimile of prints related to the
"WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication to
promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other
subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
171
 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, On the basis of court orders, government agents went to the We Forum offices in
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Quezon City and took a detailed inventory of the equipment and all materials in the
Silang." premises.

In Stanford v. State of Texas 16 the search warrant which authorized the search for Cendaa said that because of the denial the newspaper and its equipment remain
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings at the disposal of the owners, subject to the discretion of the court. 19
and other written instruments concerning the Communist Party in Texas," was declared That the property seized on December 7, 1982 had not been sequestered is further
void by the U.S. Supreme Court for being too general. In like manner, directions to confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated
"seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos,
been held too general, and that portion of a search warrant which authorized the expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11,
seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the 1983, Minister Romulo stated:
Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was 2. Contrary to reports, President Marcos turned down the recommendation of our
held to be a general warrant, and therefore invalid. 17 The description of the articles authorities to close the paper's printing facilities and confiscate the equipment and
sought to be seized under the search warrants in question cannot be characterized materials it uses. 21
differently.
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b]
In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in issued by respondent judge on December 7, 1982 are hereby declared null and void
English history: the era of disaccord between the Tudor Government and the English and are accordingly set aside. The prayer for a writ of mandatory injunction for the
Press, when "Officers of the Crown were given roving commissions to search where return of the seized articles is hereby granted and all articles seized thereunder are
they pleased in order to suppress and destroy the literature of dissent both Catholic hereby ordered released to petitioners. No costs.
and Puritan Reference herein to such historical episode would not be relevant for it is
not the policy of our government to suppress any newspaper or publication that speaks SO ORDERED.
with "the voice of non-conformity" but poses no clear and imminent danger to state
security.
As heretofore stated, the premises searched were the business and printing offices
of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the
freedom of the press guaranteed under the fundamental law, 18 and constitutes a
virtual denial of petitioners' freedom to express themselves in print. This state of being
is patently anathematic to a democratic framework where a free, alert and even
militant press is essential for the political enlightenment and growth of the citizenry.
Respondents would justify the continued sealing of the printing machines on the
ground that they have been sequestered under Section 8 of Presidential Decree No.
885, as amended, which authorizes "the sequestration of the property of any person,
natural or artificial, engaged in subversive activities against the government and its
duly constituted authorities ... in accordance with implementing rules and regulations
as may be issued by the Secretary of National Defense." It is doubtful however, if
sequestration could validly be effected in view of the absence of any implementing
rules and regulations promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that
no less than President Marcos himself denied the request of the military authorities to
sequester the property seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for sequestration
of the WE FORUM newspaper and its printing presses, according to Information
Minister Gregorio S. Cendana.

172
[ G.R. No. 120095. August 5, 1996
JMM PROMOTION AND MANAGEMENT, INC., and KARY INTERNATIONAL, INC.,
Petitioner, v. HON. COURT OF APPEALS, HON. MA. NIEVES CONFESSOR, then
Secretary of the Department of the Labor and Employment, HON. JOSE
BRILLANTES, in his capacity as acting Secretary of the Department of Labor and
Employment and HON. FELICISIMO JOSON, in his capacity as Administrator of the
Philippine Overseas Employment Administration, .
KAPUNAN, J.:
The limits of government regulation under the State's Police Power are once again
at the vortex of the instant controversy. Assailed is the government's power to control
deployment of female entertainers to Japan by requiring an Artist Record Book (ARB)
as a precondition to the processing by the POEA of any contract for overseas
employment. By contending that the right to overseas employment, is a property right
within the meaning of the Constitution, petitioners vigorously aver that deprivation
thereof allegedly through the onerous requirement of an ARB violates the due process
clause and constitutes an invalid exercise of the police power.
The factual antecedents are undisputed.
Following the much-publicized death of Maricris Sioson in 1991, former President
Corazon C. Aquino ordered a total ban against the deployment of performing artists to
Japan and other foreign destinations. The ban was, however, rescinded after leaders
of the overseas employment industry promised to extend full support for a program
aimed at removing kinks in the system of deployment. In its place, the government,
through the Secretary of Labor and Employment, subsequently issued Department
Order No. 28, creating the Entertainment Industry Advisory Council (EIAC), which was
tasked with issuing guidelines on the training, testing certification and deployment of
performing artists abroad.
Pursuant to the EIAC's recommendations, 1 the Secretary of Labor, on January 6,
1994, issued Department Order No. 3 establishing various procedures and
requirements for screening performing artists under a new system of training, testing,
certification and deployment of the former. Performing artists successfully hurdling the
test, training and certification requirement were to be issued an Artist's Record Book
(ARB), a necessary prerequisite to processing of any contract of employment by the
POEA. Upon request of the industry, implementation of the process, originally
scheduled for April 1, 1994, was moved to October 1, 1994.
Thereafter, the Department of Labor, following the EIAC's recommendation, issued
a series of orders fine-tuning and implementing the new system. Prominent among
these orders were the following issuances:
1. Department Order No. 3-A, providing for additional guidelines on the training,
testing, certification and deployment of performing artists.
2. Department Order No. 3-B, pertaining to the Artist Record Book (ARB)
requirement, which could be processed only after the artist could show proof of
academic and skills training and has passed the required tests.
3. Department Order No. 3-E, providing the minimum salary a performing artist
ought to receive (not less than US$600.00 for those bound for Japan) and the
authorized deductions therefrom.
4. Department Order No. 3-F, providing for the guidelines on the issuance and use
of the ARB by returning performing artists who, unlike new artists, shall only undergo a
Special Orientation Program (shorter than the basic program) although they must pass
the academic test.
In Civil Case No. 95-72750, the Federation of Entertainment Talent Managers of
the Philippines (FETMOP), on January 27, 1995 filed a class suit assailing these
department orders, principally contending that said orders 1) violated the constitutional
right to travel; 2) abridged existing contracts for employment; and 3) deprived
individual artists of their licenses without due process of law. FETMOP, likewise,
averred that the issuance of the Artist Record Book (ARB) was discriminatory and
illegal and "in gross violation of the constitutional right... to life liberty and property."
Said Federation consequently prayed for the issuance of a writ of preliminary
injunction against the aforestated orders.
On February 2, 1992, JMM Promotion and Management, Inc. and Kary
International, Inc., herein petitioners, filed a Motion for Intervention in said civil case,
which was granted by the trial court in an Order dated 15 February, 1995.
However, on February 21, 1995, the trial court issued an Order denying petitioners'
prayer for a writ of preliminary injunction and dismissed the complaint.
On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713
dismissed the same. Tracing the circumstances which led to the issuance of the ARB
requirement and the assailed Department Order, respondent court concluded that the
issuances constituted a valid exercise by the state of the police power.
We agree.
The latin maxim salus populi est suprema lex embodies the character of the entire
spectrum of public laws aimed at promoting the general welfare of the people under
the State's police power. As an inherent attribute of sovereignty which virtually
"extends to all public needs," 2 this "least limitable" 3 of governmental powers grants a
wide panoply of instruments through which the state, as parens patriae gives effect to
a host of its regulatory powers.
Describing the nature and scope of the police power, Justice Malcolm, in the early
case of Rubi v. Provincial Board of Mindoro 4 wrote:
"The police power of the State," one court has said...'is a power coextensive with
self-protection, and is not inaptly termed 'the law of overruling necessity.' It may be
said to be that inherent and plenary power in the state which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society.' Carried onward by the
current of legislature, the judiciary rarely attempts to dam the onrushing power of
legislative discretion, provided the purposes of the law do not go beyond the great
principles that mean security for the public welfare or do not arbitrarily interfere with
the right of the individual." 5
Thus, police power concerns government enactments which precisely interfere with
personal liberty or property in order to promote the general welfare or the common
good. As the assailed Department Order enjoys a presumed validity, it follows that the
burden rests upon petitioners to demonstrate that the said order, particularly, its ARB
173
requirement, does not enhance the public welfare or was exercised arbitrarily or
unreasonably.
A thorough review of the facts and circumstances leading to the issuance of the
assailed orders compels us to rule that the Artist Record Book requirement and the
questioned Department Order related to its issuance were issued by the Secretary of
Labor pursuant to a valid exercise of the police power.
In 1984, the Philippines emerged as the largest labor sending country in Asia
dwarfing the labor export of countries with mammoth populations such as India and
China. According to the National Statistics Office, this diaspora was augmented
annually by over 450,000 documented and clandestine or illegal (undocumented)
workers who left the country for various destinations abroad, lured by higher salaries,
better work opportunities and sometimes better living conditions.
Of the hundreds of thousands of workers who left the country for greener pastures
in the last few years, women composed slightly close to half of those deployed,
constituting 47% between 1987-1991, exceeding this proportion (58%) by the end of
1991, 6 the year former President Aquino instituted the ban on deployment of
performing artists to Japan and other countries as a result of the gruesome death of
Filipino entertainer Maricris Sioson.
It was during the same period that this Court took judicial notice not only of the
trend, but also of the fact that most of our women, a large number employed as
domestic helpers and entertainers, worked under exploitative conditions "marked by
physical and personal abuse." 7 Even then, we noted that "[t]he sordid tales of
maltreatment suffered by migrant Filipina workers, even rape and various forms of
torture, confirmed by testimonies of returning workers" compelled "urgent government
action." 8
Pursuant to the alarming number of reports that a significant number of Filipina
performing artists ended up as prostitutes abroad (many of whom were beaten,
drugged and forced into prostitution), and following the deaths of a number of these
women, the government began instituting measures aimed at deploying only those
individuals who met set standards which would qualify them as legitimate performing
artists. In spite of these measures, however, a number of our countrymen have
nonetheless fallen victim to unscrupulous recruiters, ending up as virtual slaves
controlled by foreign crime syndicates and forced into jobs other than those indicated
in their employment contracts. Worse, some of our women have been forced into
prostitution.
Thus, after a number of inadequate and failed accreditation schemes, the
Secretary of Labor issued on August 16, 1993, D.O. No. 28, establishing the
Entertainment Industry Advisory Council (EIAC), the policy advisory body of DOLE on
entertainment industry matters. 9 Acting on the recommendations of the said body, the
Secretary of Labor, on January 6, 1994, issued the assailed orders. These orders
embodied EIAC's Resolution No. 1, which called for guidelines on screening, testing
and accrediting performing overseas Filipino artists. Significantly, as the respondent
court noted, petitioners were duly represented in the EIAC, 10 which gave the
recommendations on which the ARB and other requirements were based.
Clearly, the welfare of Filipino performing artists, particularly the women was
paramount in the issuance of Department Order No. 3. Short of a total and absolute
ban against the deployment of performing artists to "high risk" destinations, a measure
which would only drive recruitment further underground, the new scheme at the very
least rationalizes the method of screening performing artists by requiring reasonable
educational and artistic skills from them and limits deployment to only those individuals
adequately prepared for the unpredictable demands of employment as artists abroad.
It cannot be gainsaid that this scheme at least lessens the room for exploitation by
unscrupulous individuals and agencies.
Moreover, here or abroad, selection of performing artists is usually accomplished
by auditions, where those deemed unfit are usually weeded out through a process
which is inherently subjective and vulnerable to bias and differences in taste. The ARB
requirement goes one step further, however, attempting to minimize the subjectivity of
the process by defining the minimum skills required from entertainers and performing
artists. As the Solicitor General observed, this should be easily met by experienced
artists possessing merely basic skills. The tests are aimed at segregating real artists or
performers from those passing themselves off as such, eager to accept any available
job and therefore exposing themselves to possible exploitation.
As to the other provisions of Department Order No. 3 questioned by petitioners, we
see nothing wrong with the requirement for document and booking confirmation (D.O.
3-C), a minimum salary scale (D.O. 3-E), or the requirement for registration of
returning performers. The requirement for a venue certificate or other documents
evidencing the place and nature of work allows the government closer monitoring of
foreign employers and helps keep our entertainers away from prostitution fronts and
other worksites associated with unsavory, immoral, illegal or exploitative practices.
Parenthetically, none of these issuances appear to us, by any stretch of the
imagination, even remotely unreasonable or arbitrary. They address a felt need of
according greater protection for an oft-exploited segment of our OCW's. They respond
to the industry's demand for clearer and more practicable rules and guidelines. Many
of these provisions were fleshed out following recommendations by, and after
consultations with, the affected sectors and non-government organizations. On the
whole, they are aimed at enhancing the safety and security of entertainers and artists
bound for Japan and other destinations, without stifling the industry's concerns for
expansion and growth.
In any event, apart from the State's police power, the Constitution itself mandates
government to extend the fullest protection to our overseas workers. The basic
constitutional statement on labor, embodied in Section 18 of Article II of the
Constitution provides:
Sec. 18. The State affirms labor as a primary social economic force. It shall protect
the rights of workers and promote their welfare.
More emphatically, the social justice provision on labor of the 1987 Constitution in
its first paragraph states:
The State shall afford full protection to labor, local and overseas, organized and
unorganized and promote full employment and equality of employment opportunities
for all.
Obviously, protection to labor does not indicate promotion of employment alone.
Under the welfare and social justice provisions of the Constitution, the promotion of full
employment, while desirable, cannot take a backseat to the government's
constitutional duty to provide mechanisms for the protection of our workforce, local or
overseas. As this Court explained in Philippine Association of Service Exporters
174
(PASEI) v. Drilon, 11 in reference to the recurring problems faced by our overseas A last point. Petitioners suggest that the singling out of entertainers and performing
workers: artists under the assailed department orders constitutes class legislation which violates
What concerns the Constitution more paramountly is that such an employment be the equal protection clause of the Constitution. We do not agree.
above all, decent, just, and humane. It is bad enough that the country has to send its The equal protection clause is directed principally against undue favor and
sons and daughters to strange lands because it cannot satisfy their employment needs individual or class privilege. It is not intended to prohibit legislation which is limited to
at home. Under these circumstances, the Government is duty-bound to insure that our the object to which it is directed or by the territory in which it is to operate. It does not
toiling expatriates have adequate protection, personally and economically, while away require absolute equality, but merely that all persons be treated alike under like
from home. conditions both as to privileges conferred and liabilities imposed. 16 We have held,
We now go to petitioners' assertion that the police power cannot, nevertheless, time and again, that the equal protection clause of the Constitution does not forbid
abridge the right of our performing workers to return to work abroad after having earlier classification for so long as such classification is based on real and substantial
qualified under the old process, because, having previously been accredited, their differences having a reasonable relation to the subject of the particular legislation. 17 If
accreditation became a property right," protected by the due process clause. We find classification is germane to the purpose of the law, concerns all members of the class,
this contention untenable. and applies equally to present and future conditions, the classification does not violate
the equal protection guarantee.
A profession, trade or calling is a property right within the meaning of our
constitutional guarantees. One cannot be deprived of the right to work and the right to In the case at bar, the challenged Department Order clearly applies to all
make a living because these rights are property rights, the arbitrary and unwarranted performing artists and entertainers destined for jobs abroad. These orders, we
deprivation of which normally constitutes an actionable wrong. 12 stressed hereinbefore, further the Constitutional mandate requiring Government to
protect our workforce, particularly those who may be prone to abuse and exploitation
Nevertheless, no right is absolute, and the proper regulation of a profession, as they are beyond the physical reach of government regulatory agencies. The tragic
calling, business or trade has always been upheld as a legitimate subject of a valid incidents must somehow stop, but short of absolutely curtailing the right of these
exercise of the police power by the state particularly when their conduct affects either performers and entertainers to work abroad, the assailed measures enable our
the execution of legitimate governmental functions, the preservation of the State, the government to assume a measure of control.
public health and welfare and public morals. According to the maxim, sic utere tuo ut
alienum non laedas, it must of course be within the legitimate range of legislative WHEREFORE, finding no reversible error in the decision sought to be reviewed,
action to define the mode and manner in which every one may so use his own property petition is hereby DENIED.
so as not to pose injury to himself or others. 13 SO ORDERED.
In any case, where the liberty curtailed affects at most the rights of property, the
permissible scope of regulatory measures is certainly much wider. 14 To pretend that
licensing or accreditation requirements violates the due process clause is to ignore the
settled practice, under the mantle of the police power, of regulating entry to the
practice of various trades or professions. Professionals leaving for abroad are required
to pass rigid written and practical exams before they are deemed fit to practice their
trade. Seamen are required to take tests determining their seamanship. Locally, the
Professional Regulation Commission has began to require previously licensed doctors
and other professionals to furnish documentary proof that they had either re-trained or
had undertaken continuing education courses as a requirement for renewal of their
licenses. It is not claimed that these requirements pose an unwarranted deprivation of
a property right under the due process clause. So long as Professionals and other
workers meet reasonable regulatory standards no such deprivation exists.
Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment
clause of the Constitution to support their argument that the government cannot enact
the assailed regulatory measures because they abridge the freedom to contract. In
Philippine Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-
impairment clause of the Constitution... must yield to the loftier purposes targeted by
the government." 15 Equally important, into every contract is read provisions of
existing law, and always, a reservation of the police power for so long as the
agreement deals with a subject impressed with the public welfare.

175
[G.R. No. 105090. September 16, 1993.]
BISIG NG MANGGAGAWA SA CONCRETE AGGREGATES, INC., (BIMCAI) FSM,
AND ITS UNION OFFICERS & MEMBERS, ETC., Petitioners, v. NATIONAL LABOR
RELATIONS COMMISSION, LABOR ARBITER ERNILO V. PEALOSA AND
CONCRETE AGGREGATES CORP., Respondents.
PUNO, J.:
The restoration of the right to strike is the most valuable gain of labor after the
EDSA revolution. It is the employees sole weapon which can effectively protect their
basic rights especially in a society where the levers of powers are nearly monopolized
by the propertied few or their franchisees. In recognition of its importance, our
Constitution has accorded the right to strike a distinct status while our laws have
assured that its rightful exercise will not be negated by the issuance of unnecessary
injunctions. The impugned Order of the public respondents in the case at bar infringes
petitioners right to strike and hence must be struck down.
The labor conflict between the parties broke out in the open when the petitioner
union 1 struck on April 6, 1992 protesting issues ranging from unfair labor practices
and union busting allegedly committed by the private Respondent. 2 The union
picketed the premises of the private respondent at Bagumbayan and Longos in
Quezon City; Angono and Antipolo in Rizal; San Fernando, Pampanga and San Pedro,
Laguna.
The strike hurt the private Respondent. On April 8, 1992, it filed with the NLRC a
petition for injunction 3 to stop the strike which it denounced as illegal. It alleged:
xxx
"13. On April 6, 1992, at around 7:00 P.M., respondents led by its officers and
some members staged a wild-cat strike, without a valid notice of strike, nor observing
cooling-off period, and made even during the pendency of a preventive mediation
proceedings which was still scheduled for April 10, 1992;
"14. And during the said wild-cat strike, respondents have set-up makeshifts, tents,
banners and streamers and other man-made obstructions at the main plant and offices
of petitioner which effectively impeding, as in fact still effectively impeding the ingress
and egress of persons who have lawful business with the petitioner;
"15. Furthermore, respondents have resorted, as in fact still resorting to, unlawful
and illegal acts including among others threats, intimidations and coercions against
persons who have lawful business with the petitioner and the non-striking employees
who wish to return to work;
"16. Without complying with the legal requirements for a valid strike, respondents
staging of the said wild-cat strike, is by law considered as illegal or unlawful act which
must be enjoined;
"17. As a direct result of the aforesaid unlawful and illegal acts of the respondents,
petitioner which has on-going projects for the government and other private entities
which require completion on and agreed schedule, is at great and imminent danger to
suffer substantial damages and injury, which if not urgently redressed, will inevitably
become irreparable;
"18. Said prohibited and unlawful acts have been threatened and will continuously
be committed unless the injunction or temporary restraining order be issued against
the respondents; (pp. 2-5, Records).
xxx
"23. The injury and damages to the government of Republic of the Philippines, the
petitioner and other persons are unavoidable, so much so that the issuance of a
Temporary Restraining Order without notice becomes imperative, as the police officers
or agents of authority called upon to enforce the right to ingress and egress are unable
to do so; (p. 6, ibid)" .
The petition was set for hearing on April 13, 1992 at 3 p.m. The union, however,
claimed that it was not furnished a copy of the petition. Allegedly, the company
misrepresented its address to be at Rm. 205-6 Herald Bldg., Muralla St., Intramuros,
Manila.
On April 13, 1992, the NLRC heard the evidence of the company alone. The ex
parte hearing started at 2:30 p.m., where testimonial and documentary evidence were
presented. 4 Some thirty (30) minutes later, an Ocular Inspection Report was
submitted by an unnamed NLRC representative 5 which reads:
"OCULAR INSPECTION REPORT
Authorization dated April 13, 1992 was issued to the effect of directing the
undersigned to conduct an ocular inspection of the premises of the petitioner located
at Bagumbayan, Quezon City.
The inspection was conducted immediately upon receipt hereof.
OBSERVATION
The passage was obstructed with pieces of rock, an old ladder, pieces of wood and
other hard objects that gave rise to a strong indication that the passage to and from
the premises was not free. The barricades and obstruction were put up fifty (50)
meters or less away from the main gate.
The business operation was completely paralized (sic) as no person was noticed
inside the company compound. No persons and/or vehicles were seen entering and
leaving the premises. Ingress to and engress from the company is presumed to be not
free."
Before the day was over, the respondent NLRC (First Division) issued a temporary
restraining order against the union, viz:
". . . RESOLVED, to issue a Temporary Restraining Order valid for twenty (20)
days, subject to petitioners posting of a cash or surety bond of Twenty Thousand
(P20,000.00) Pesos conditioned to recompense respondents for any loss, expense or
damage they may suffer in the event it is eventually found out that petitioner is not
entitled to the relief sought and herein granted, DIRECTING: a) the respondents, their
agents and symphatizers to remove (subject to their right to conduct a lawful picket)
the man-made barricades/obstructions complained of and to direct from further
preventing and/or impeding the free ingress to and egress from petitioners main plant
and office premises of its employees, officials, vehicles, customers or any party who
176
may want to transact business thereat through the use of any obstructive means
prohibited by law; b) any officer from the Legal Division of this Commission to ensure
compliance of the foregoing restraining order and where necessary, to enlist in the
implementation of this Order, as deputized enforcement officers, the assistance of
peace officers of this government that has jurisdiction over the strike areas; c) Labor
Arbiter Ernilo V. Penalosa to immediately set this case for further hearing with the aim
of affording respondents enough opportunity to contest/oppose the issuance of
temporary/permanent injunction prayed for in the petition and to submit a report to this
Commission within ten (10) days from termination of said hearing" .
No copy of this Order was furnished the union. The union learned of the Order only
when it was posted on April 15, 1992 at the premises of the company. On April 21,
1992, it filed its Opposition/Answer to the petition for Injunction. Among others, it
alleged:
xxx addressed the respondents at Rm. 205-206 Herald Bldg., Muralla St., Manila as stated
"9. The allegation in paragraph 13 of an alleged illegal strike for the reasons stated
therein is denied. It is also added that the question of strike legality is outside the
original jurisdiction of the NLRC except if the labor dispute has been certified to it for
compulsory arbitration. Hence, not only is paragraph 13 denied, denial is made
likewise of paragraph 16 which asks that the strike must be enjoined. Paragraph 16 is
irrelevant to the cause of action in injunction because only the illegal or unlawful acts
maybe enjoined. The strike itself cannot be enjoined unless certified by the honorable
Secretary of Labor to the NLRC for compulsory arbitration.
"9. Paragraphs 14, 15, 17, 18, and 19 of the allegations supporting the cause of
action are also denied for being self-serving and premature.
"10. Respondents also deny the allegation in paragraph 20 as the public officers
charged with the duty to protect the petitioners property are able and willing to furnish
adequate protection as shown by the fact that when the temporary restraining order
was served, the police and other law enforcement agency personnel came
immediately to respond and enforced the order peacefully" .
On April 24, 1992, the union also filed its own Petition for Injunction to enjoin the
company "from asking the aid of the police and the military officer in escorting scabs to
enter the struck establishment."
The records show that the case was heard on April 24 and 30, May 4 and 5, 1992
by respondent Labor Arbiter Enrilo Pealosa. 6 On April 30, 1992, the company filed a
Motion for the Immediate Issuance of Preliminary Injunction wherein it alleged:
"xxx the provision of Art. 263 of the Labor Code."
"7. In the meantime, the respondents are still committing illegal acts, by resorting to
grave threats, intimidation against the non-striking employees and persons with lawful
transactions with the company since April 20, 1992, continuously up to this time, either
by actual threats and intimidation whenever these persons attempt to report to work or
transact business with the company, or by calling at their houses or places of
residence, and then and there coerce not to report for work on pain of bodily harm; As
proof thereof, petitioner attaches the affidavit of Atty. Elmer Jolo, Augusto Bautista,
Ronnie Mercado, among others, as Annexes "A", "B" & "C" and made integral parts
thereof.
"8. For these reasons, said workers and persons are constrained to refrain from
reporting for work or from transacting business with the company;
"9. Finally, no less than the president of the Union, supported by the leaders of the
strikers, threatened that upon the expiration of the validity of the temporary restraining
order, they will sisimentuhin namin ang gates ng Concrete Aggregates na kahit ipis ay
hindi makakapasok at makakalabas (We will cement the gates of the Concrete
Aggregates that even cockroaches could not pass through);"
The union got wind of the motion only on May 4, 1992. The next day, May 5, 1992,
it opposed the motion, alleging:
"xxx
"They were never furnished by the petitioner with a copy of the original petition for
injunction filed on April 8, 1992 because as seen from the petition, petitioner
in paragraph 2 of the said petition and they came to know only of the same when
Commission issued a temporary restraining order dated April 15, 1992 which was
served to them at the picket line on April 15, 1992 and thus they opposed the same on
April 20, 1992 (pp. 99-100, Records).
". . . The suspicion is that same is deliberate in order for the union not to be able to
immediately oppose the petition praying for a temporary restraining order and so
petitioner was scot-free when it presented ex-parte evidence. The motion for the
immediate issuance of a preliminary injunction foisted upon the Honorable
Commission with affidavits of employees debunked by cross-examination and officers
of the company making fantastic claims is an attempt to have lightning strike twice at
the same place. We hope this Honorable Commission is not fooled and therefore we
beseech it to examine carefully the pleadings and the transcript on this question of
threat or prohibited acts.
xxx
"The allegation of damages if no injunction is secured is therefore premature and
irrelevant in this proceedings because there is no proof that the strike is illegal. For if
the strike is legal then both sides must bear their own losses in an economic contest:
the company - loss of income; the workers loss of wages. These are the stakes in
an economic dispute. The desperate company posture to enjoin even the strike itself is
shown by its letter to the Secretary of Labor dated April 6, 1992, a copy of which is
hereto attached as Annex "A." The Secretary of Labor has not yet acted on this
request. The company believes probably that an injunction petition would substitute
The same day, however, the respondent NLRC issued its disputed Order 7 granting
the companys motion for preliminary injunction. It reads:
"It appears that despite the issuance of a temporary restraining order on April 14,
1991, the respondents have not ceased in committing the illegal acts being enjoined.
As shown by petitioner during the hearings of its main petition for preliminary and/or
permanent injunction, held on the first day of the implementation of the temporary
restraining order on April 20, 1992 and the day thereafter, Respondents, thru the
177
formation of human blockade, have prevented the company vehicles and Employees
Shuttle Buses from entering the company premises, and through force and intimidation
made the non-striking employees on board the vehicles and buses to get down: that
even the companys Assistant Manager for Operations, Mr. Ronnie Mercado, who tried
to help the non-striking employees to enter the company premises was blocked by the
strikers and was even told "wala kaming pakialam sa restraining order ninyo, basta
hindi namin papapasukin para magtrabaho ang sino mang empleyado ng Concrete
Aggregates. Bubugbugin namin kayo pag kayo nagpilit." He was further told that "Ikaw
Mercado huwag kang mapapel dito baka may mangyari sa iyo." As a result of the said
blockade, threats and intimidation, more or less 100 non-striking employees now, have
not been able to report for work; moreover, the inability of the companys Longos Plant
to operate fully had caused it to lose the contracted RMC Sales of around 10,000 cubic
meters worth around P10 million, not to mention the expected loss in sales for the next
three (3) months at P14 million per month since no customers, regular or prospective,
could transact business with the company. But foremost of all, it has been shown that
no less than the President of the Union, Ramos Banas, with the support of the leaders
of the strikers, has threatened that upon the expiration of the validity of the temporary
restraining order on May 5, 1992, they will not only barricade the gates of the company
but even seal them all so that "even cockcroaches could not pass through.
"While respondents witnesses, who were mentioned in the testimonies/affidavits of
petitioners witnesses, tried to deny the illegal acts imputed against them, the fact
remains undisputed that when the convoy of the company cars and Employees Shuttle
Buses with reporting non-striking employees on board were about to enter the
compound of the companys Longos Plant in Quezon City, they were stopped by the
respondents on the lame excuse that they were only to inquire as to who were those
on board and that they asked those who are allegedly non employees of the petitioner
to get down. It has been substantially established that out of the work force of the
Longos Plant, about 100 more or less employees have not been able to enter the plant
premises from April 20, 1991 up to the present, for fear of bodily harm from the
strikers. Likewise, if it were true, as claimed, that no threats and intimidation were
committed against the company officials who were to report for work, then there is no
reason why the Manager for Operations, Ronnie Mercado, should be complaining to
the police nearby and for the latter to advise respondents Ramon Banas and Ernest
Lascona behave well. Moreover, there is merit to the claim of petitioner that even
contract workers hired by it who, even before the strike and up to the present, were
assigned to work inside the premises of the Longos were denied entrance by the
strikers for their being alleged scabs. With this admission regarding the contract
worker, there is reason to believe the truth and veracity of the statement as of
petitioners witnesses, especially the reasonable fear that after the lapse of the twenty
(20) days duration of the temporary restraining order, the respondents-strikers will
again resort to barricading the entrances of petitioners plants to prevent anyone from
entering the said plants premises.
"On the bases of all the foregoing facts and circumstances, the First Division of this
Commission, after due deliberation hereby RESOLVED: (pending conclusion of the
hearing on petitioners main petition of April 24, 1991), to issue preliminary injunction:
a) enjoining the respondents, their representative and symphatizers, if any, without
prejudice to their right to conduct a peaceful and lawful picket, from preventing the
non-striking employees, officials of the company and their vehicles, customers and
visitors free ingress to and egress from petitioners plant and premises; directing them
to make the ingress to and egress from said premises free from any and all obstruction
at all times; and requiring them to desist from further threatening and intimidating at
their houses or elsewhere the non-striking employees who up to now could not report
for work and to allow them to report for work unmolested: b) directing them, despite the
union presidents statement that none of the feared illegal acts will be committed after
the lapse of the temporary restraining order, to refrain from doing any illegal act which
will exacerbate the situation upon the expiration of the temporary restraining order: c)
applying the cash or surety bond of P20,000.00 posted by petitioner for the temporary
restraining order that will expire on May 5, 1992 as the case or surety bond for this
preliminary injunction: d) deputizing any officer from the Legal Division of this
Commission to effectively enforce and implement this injunctive order and, if
necessary, to enlist the assistance of the PNP or other peace officers having
jurisdiction over the strike areas in the enforcement and implementation of this Order.
Let two (2) copies of this injunctive order be posted in two (2) conspicuous places
of each of the strike areas by the Bailiff of this Commission for the information and
proper guidance of all concerned.
SO ORDERED."
The union then filed the instant petition for certiorari and mandamus raising the
following issues:
"xxx
"3. Whether or not the respondent NLRC can issue a preliminary injunction, as it
did issue, after the lapse of a twenty day temporary restraining order without regard to
the specific provision of Article 218 (e) of the Labor Code, . . ., considering that in the
Order dated May 5, 1992 (attached as Annex "E" of this petition) there is no finding of
fact by the respondent NLRC in any of the five pages of the aforesaid Order, to the
effect that, as required by law," (4) That complainant has no adequate remedy at law;
and (5) That the public officers charged with the duty to protect complainants property
are unable or unwilling to furnish adequate protection.
"4. Whether or not public respondent NLRC and Labor Arbiter have unlawfully
neglected the performance of an act which the law enjoins as a duty resulting from
office considering that after petitioner also filed on April 24, 1992 a petition asking a
temporary restraining order and injunction against the escorting by police authorities of
individuals who seek to replace the strikers in entering or leaving the premises of a
strike area or work in the place of the strikers and that the police force will keep out of
the picket lines unless actual violence or other criminal acts occur therein as provided
by Article 264 (d) of the Labor Code, considering that the Labor Arbiter reluctantly
allowed petitioners to present their evidence in support of their petition to enjoin the
scabs being escorted by the police; WHILE in contrast, it continuously set the motion
for immediate issuance of preliminary injunction of private respondents on April 30,
1992, May 4 and 5, 1992 and issued a temporary restraining order in favor of the
respondent corporation in an hour."
We ordered the public and private respondents to comment on the petition. 8 In its
29-page Comment, Solicitor General Raul I. Goco 9 took the position that the petition
is impressed with merit. In contrast, the private respondent company, defended the
validity of the Order dated May 5, 1992 of the NLRC. 10 Similarly, the NLRC
contended that it did not abuse its direction in issuing the disputed Order. 11
178
 We find for the petitioners.
Strike has been considered the most effective weapon of labor in protecting the
rights of employees to improve the terms and conditions of their employment. It may
be that in highly developed countries, the significance of strike as a coercive weapon
has shrunk in view of the preference for more peaceful modes of settling labor
disputes. In underdeveloped countries, however, where the economic crunch
continues to enfeeble the already marginalized working class, the importance of the
right to strike remains undiminished as indeed it has proved many a time as the only
coercive weapon that can correct abuses against labor. It remains as the great
equalizer.
In the Philippine milieu where social justice remains more as a rhetoric than a
reality, labor has vigilantly fought to safeguard the sanctity of the right to strike. Its
struggle to gain the right to strike has not been easy and effortless. Labors early
exercise of the right to strike collided with the laws on rebellion and sedition and sent
its leaders languishing in prisons. The spectre of incarceration did not spur its leaders
to sloth; on the contrary it spiked labor to work for its legitimization. This effort was
enhanced by the flowering of liberal ideas in the United States which inevitably
crossed our shores. It was enormously boosted by the American occupation of our
country. Hence, on June 17, 1953, Congress gave statutory recognition to the right to
strike when it enacted RA 875, otherwise known as the Industrial Peace Act. For nearly
two (2) decades, labor enjoyed the right to strike until it was prohibited on September
12, 1972 upon the declaration of martial law in the country. The 14-year battle to end
martial rule produced many martyrs and foremost among them were the radicals of the
labor movement. It was not a mere happenstance, therefore, that after the final battle
against martial rule was fought at EDSA in 1986, the new government treated labor
with a favored eye. Among those chosen by then President Corazon C. Aquino to draft
the 1987 Constitution were recognized labor leaders like Eulogio Lerum, Jose D.
Calderon, Blas D. Ople and Jaime S.L. Tadeo. These delegates helped craft into the
1987 Constitution its Article XIII entitled Social Justice and Human Rights. For the first
time in our constitutional history, the fundamental law of our land mandated the State
to" .. guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in
accordance with law." 12 This constitutional imprimatur given to the right to strike
constitutes signal victory for labor. Our Constitutions of 1935 and 1973 did not accord
constitutional status to the right to strike. Even the liberal US Federal Constitution did
not elevate the right to strike to a constitutional level. With a constitutional matrix,
enactment of a law implementing the right to strike was an inevitability. RA 6715 came
into being on March 21, 1989, an intentional replication of RA 875. 13 In light of the
genesis of the right to strike, it ought to be obvious that the right should be read with a
libertarian latitude in favor of labor. In the wise words of Father Joaquin G. Bernas,
S.J., a distinguished commissioner of the 1987 Constitutional Commission." . . the
constitutional recognition of the right to strike does serve as a reminder that
injunctions, should be reduced to the barest minimum." 14
In the case at bar, the records will show that the respondent NLRC failed to comply
with the letter and spirit of Article 218 (e), (4) and (5) of the Labor Code in issuing its
Order of May 5, 1992. Article 218 (e) of the Labor Code provides both the procedural
and substantive requirements which must strictly be complied with before a temporary
or permanent injunction can issue in a labor dispute, viz:
"ART. 218. Powers of the Commission. The Commission shall have the power
and authority:
xxx
(e) To enjoin or restrain any actual or threatened commission of any or all
prohibited or unlawful acts or to require the performance of a particular act in any labor
dispute which, if not restrained or performed forthwith, may cause grave or irreparable
damage to any party or render ineffectual any decision in favor of such party:
Provided, That no temporary or permanent injunction in any case involving or growing
out of a labor dispute as defined in this Code shall be issued except after hearing the
testimony of witnesses, with opportunity for cross-examination, in support of the
allegations of a complaint made under oath, and testimony in opposition thereto, if
offered, and only after a finding of fact by the commission, to the effect:
"(1) That prohibited or unlawful acts have been threatened and will be committed
and will be continued unless restrained but no injunction or temporary restraining order
shall be issued on account of any threat, prohibited or unlawful act, except against the
person or persons, association or organization making the threat or committing the
prohibited or unlawful act or actually authorizing or ratifying the same after actual
knowledge thereof;
"(2) That substantial and irreparable injury to complainants property will follow;
"(3) That as to each item of relief to be granted, greater injury will be inflicted upon
complainant by the denial of relief than will be inflicted upon defendants by the
granting of relief;
"(4) That complainant has no adequate remedy at law; and
"(5) That the public officers charged with the duty to protect complainants property
are unable or unwilling to furnish adequate protection.
"Such hearing shall be held after due and personal notice thereof has been served,
in such manner as the Commission shall direct, to all known persons against whom
relief is sought, and also to the Chief Executive and other public officials of the
province or city within which the unlawful have been threatened or committed charged
with the duty to protect complainants property: . . ." (Emphasis ours).
In his Comment, the Solicitor General cited various evidence on record showing
the failure of public respondents to fulfill the requirements, especially of paragraphs
four (4) and five (5) of the above cited law. We quote with approval the pertinent
portions of the Comment:
xxx
"It must be noted that to support the claim of threats, intimidation, unlawful and
prohibited acts, etc. allegedly committed by the union against the non-striking
employees, the company even submitted a joint affidavit signed by Joselito
Concepcion, Renato Trambulo and Armando Arcos. Said affidavit reads
JOINT AFFIDAVIT
We, ARMANDO ARCOS, CESAR NAVARRO and RENATO TRAMBULO residents
of Dasmarias, Cavite and JOSELITO CONCEPCION of Binangonan, Rizal all of legal
age, Filipino after having been sworn hereby depose and say:
179
 That we are contract worker (sic) of CAC under Engr. Mercado; ATTY. MACARUBBO:
That last April 20, 1992 at around 8:00 A.M. we were denied entry at the Longos Have you read this affidavit?
Plant by striking workers particularly Ramon Banas, Ricardo Manalang, Rodrigo MR. TRAMBULO:
Manalang, Rodrigo Lauihon and Ernesto Lascona;
Hindi pa ho.
That the abovenamed persons stopped us at the gate of Longos Plant, told us to
get off the bus, and in threatening manner told us to leave and vacate the premises xxx
otherwise something bad will happen to us; ATTY. MACARUBBO:
That because of this unlawful, illegal and felonious acts of the said persons we Perhaps, what you meant is . . .
were compelled to do something against our will that is to leave without being able to
ATTY. ESPINAS:
report for work;
No, no, no, . . . You can ask another question. His answer is Before I, signed it
That the abovenamed person and the herein complainants are residents of
but I have not read it yet.
barangays in different cities and municipalities hence the matter is not covered by PD
1508; ATTY. MACARUBBO:
That we are executing this affidavit to charge Ramon Banas, Ricardo Manalang, What do you mean that you have not read this?
Rodrigo Lauihon and Ernesto Lascana with Grave Coercion. (Exh. "I", p. 896, MR. TRAMBULO:
Records) (Italics Supplied).
Sa akin lang po, iyong sinabi sa akin na . . . iyong hinarang kami, pinababa kami . .
"However, when presented before the Labor Arbiter, the affiants themselves . iyon lang po ang alam ko. Wala na po akong ibang alam.
controverted the allegations in said joint-affidavit. They innocently divulged having
ATTY. MACARUBBO:
signed the prepared affidavit without first reading the same. Likewise, they admitted
that they did not see or hear Banas, Manalang, Lacuna and Lacejon threatened the Hinarang ka?
group of "non-strikers" including themselves of bodily harm (pp. 13-14, 20-21, 35-37, MR. TRAMBULO:
46-47, 49-50, 54-61, TSN, April 24, 1992). They testified, thus
Hinarang kami, pinababa kami dahil hindi daw kami empleyado sa kompanya.
ATTY. MACARUBBO:
CROSS-EXAMINATION OF JOSELITO CONCEPCION
At iyon ang ibig sabihin nito?
MR. TRAMBULO:
ARBITER PEALOSA:
The question is . . . who prepared the affidavit? Alam mo raw ba kung sino ang
gumawa ng affidavit na ito? CROSS-EXAMINATION OF RENATO TRAMBULO

ATTY. ESPINAS: ATTY. ESPINAS:

Sinong gumawa? What did Lacejon said (sic).

ATTY. MACARUBBO: MR. TRAMBULO:

Para sa iyo? Pinababa na lang po kami sa service. Sabi niya, bumaba na kayo dahil hindi
naman kayo empleyado ng Concrete, kaya bumaba na lang po kami.
MR. CONCEPCION:
(pp. 46-47, 49-50, id).
Si Attorney po.
(pp. 20, 21, ibid).
TESTIMONY OF ARMANDO ARCOS:
ATTY. ESPINAS:
DIRECT TESTIMONY OF RENATO TRAMBULO
Cross-examination. Sinabi ba ng mga taong ito na kung hindi kayo bababa,
ATTY. MACARUBBO: masama ang mangyayari sa inyo? Meron bang sinabing ganoon?
Mr. Witness, did you sign an affidavit dated April 24, 1992? ATTY. ARCOS:
MR. TRAMBULO: Wala ho.
Yes, Sir.
180
 ATTY. ESPINAS: After the restraining order the people can already enter.
Dito sa second paragraph which says . . . told you to leave and vacate the ATTY. ESPINAS:
premises otherwise something bad will happen to us. Kung hindi kayo umalis . . . They were escorted by the police?
walang sinabing ganoon?
MR. WITNESS:
MR. ARCOS:
No, sir.
Wala naman ho.
(P. 75, ibid) (Italics ours).
xxx
xxx
ATTY. ESPINAS:
ATTY. ESPINAS:
Sino ang nagsabi sa inyo na "Hindi naman kayo empleyado, bumaba na kayo?"
O, lahat ng gustong pumasok, makakapasok na ngayon?
MR. ARCOS:
MR. WITNESS:
Si Lacejon. Iyong may salamin.
Yes, sir.
ATTY. ESPINAS:
(p. 85, ibid).
Pero walang sinabi si Lacejon na kung hindi kayo bababa may masamang
mangyayari sa inyo? "Furthermore, Atty. Elmer Jolo, the Personnel Manager joined by Mr. Mercado,
disclosed that the public authorities charged to protect the companys properties were
MR. ARCOS: neither unwilling or unable to furnish adequate protection. As a matter of fact, the
Wala naman ho. police regularly patrolling the area, was never requested assistance. Thus
(pp. 59-61, id).
Moreover, no less than Mr. Ronnie Mercado, the Assistant Manager for Operations CROSS-EXAMINATION OF ATTY. ELMER JOLO
of the Company, testified that after the issuance of the ex parte temporary restraining ATTY. ESPINAS:
order, the barricade blocking the gates were removed and people were allowed free
ingress and egress (please see also pp. 70-71, 96, TSN, April 30, 1992). He stated, Did you not ask the assistance of the San Pedro policemen on this matter of
thus obstruction and other similar activities in obstructing the gates of the plant?
MR. WITNESS:

CROSS-EXAMINATION OF MR. MERCADO I did not.

ATTY. ESPINAS: ATTY. ESPINAS:

So after the temporary restraining order, were the barricade removed? Did you not ask the policemen of Angono, Rizal to help you on this matter again of
extracting the trucks which were supposed to deliver pre-stress material of that day?
MR. WITNESS:
MR. WITNESS:
Those blocking the gates, yes.
Personally I did not because I leave this police matter to my chief security officer.
xxx
ATTY. ESPINAS:
ATTY. ESPINAS:
Did your chief security officer ask the assistance of the policemen of Quezon City
But the barricades blocking the gates were already removed. with respect to the Longos Plant?
MR. WITNESS: MR. WITNESS:
The barricades blocking the gates were already removed. That I do not know.
(pp. 66-67, TSN, April 30, 1992). ATTY. Espinas:
xxx Did you ask the aid of the policemen at Bagumbayan, Quezon City to help you
ATTY. ESPINAS: regarding the incident of April 6, 1992 at 7:00 p.m.?
Let us go to Antipolo. After the restraining order the people were able to enter? MR. WITNESS:
MR. WITNESS:

181
 I did not personally because I instructed this police matter to my chief security And the security officer can request the aid of the policemen?
officer. MR. WITNESS:
ATTY. ESPINAS: Yes.
Did your chief security officer seek the aid of the policemen? (pp. 128-129, id).
MR. WITNESS: "Verily, the factual circumstances proven by the evidence show that there was no
That I do not know. concurrence of the five (5) prerequisites mandated by Art. 218(e) of the Labor Code.
(pp. 41-43, TSN, April 30, 1992). Thus there is no justification for the issuance of the questioned Order of preliminary
injunction."
CROSS-EXAMINATION OF MR. MERCADO
The Comments of the private and public respondents did not dispute the
ATTY. ESPINAS: correctness of these documentary and testimonial evidence.
The policemen are from Quezon city. Moreover, the records reveal the continuing misuse of unfair strategies to secure
MR. WITNESS: ex parte temporary restraining orders against striking employees. Petitioner union did
not receive any copy of private respondents petition for injunction in Case No.
I think so, kasi nagpa-patrol sila.
000249-92 filed on April 8, 1992. Its address as alleged by the private respondent
ATTY. ESPINAS: turned out to be "erroneous." 15 Consequently, the petitioner was denied the right to
Nagpatrol? They were called by the company? attend the hearing held on April 13, 1992 while the private respondent enjoyed a field
day presenting its evidence ex parte. On the basis of uncontested evidence, the public
MR. WITNESS:
respondent, on the same day April 13, 1992, temporarily enjoined the petitioner from
No, sir, kaya lang parati silang umiikot diyan. committing certain alleged illegal acts. Again, a copy of the Order was sent to the
ATTY. ESPINAS: wrong address of the petitioner. Knowledge of the Order came to the petitioner only
when its striking members read it after it was posted at the struck areas of the private
So the policemen were present patrolling? Respondent.
MR. WITNESS: To be sure, the issuance of an ex parte temporary restraining order in a labor
Paminsan-minsan sumulpot lang. dispute is not per se prohibited. Its issuance, however, should be characterized by
(pp. 85-86, id). care and caution for the law requires that it be clearly justified by considerations of
extreme necessity, i.e., when the commission of unlawful acts is causing substantial
The foregoing testimonies of the senior officers of the company are further and irreparable injury to company properties and the company is, for the moment,
buttressed by the admission of one of the laborers, also presented as witness by the bereft of an adequate remedy at law. This is as it ought to be, for imprudently issued
company, who testified that temporary restraining orders can break the back of employees engaged in a legal
strike. Often times, they unduly tilt the balance of a labor warfare in favor of capital.
When that happens, the deleterious effects of a wrongfully issued, ex parte temporary
CROSS-EXAMINATION OF AUGUSTUS BAUTISTA
restraining order on the rights of striking employees can no longer be repaired for they
ATTY. ESPINAS: defy simple monetization. Moreover, experience shows that ex parte applications for
But they were not bodily stopped from entering after the 21. Were they? restraining orders are often based on fabricated facts and concealed truths. A more
becoming sense of fairness, therefore, demands that such ex parte applications should
MR. WITNESS:
be more minutely examined by hearing officers, lest, our constitutional policy of
No. protecting labor becomes nothing but a synthetic shibboleth. The immediate need to
(p. 124, TSN, April 30, 1992). hear and resolve these ex parte applications does not provide any excuse to lower our
vigilance in protecting labor against the issuance of indiscriminate injunctions. Stated
xxx otherwise, it behooves hearing officers receiving evidence in support of ex parte
ATTY. ESPINAS: injunctions against employees in strike to take a more active stance in seeing to it that
In other words, aside from the police there is a security office detained? their right to social justice is in no way violated despite their absence. This equalizing
stance was not taken in the case at bar by the public respondents.
MR. WITNESS:
Nor do we find baseless the allegation by petitioner that the public respondents
Yes, we have our own. have neglected to resolve with reasonable dispatch its own Petition for Injunction with
ATTY. ESPINAS: prayer for a temporary restraining order dated April 25, 1992. The petition invoked

182
Article 264 (d) of the Labor Code 16 to enjoin the private respondent from using the
military and police authorities to escort scabs at the struck establishment. Sadly
contrasting is the haste with which public respondents heard and acted on a similar
petition for injunction filed by the private Respondent. In the case of the private
respondent, its prayer for an ex parte temporary restraining order was heard on April
13, 1992 and it was granted on the same day. Its petition for preliminary injunction was
filed on April 30, 1992, and was granted on May 5, 1992. In the case of petitioner, its
petition for injunction was filed on April 24, 1992, and to date, the records do not reveal
whether the public respondent has granted or denied the same. The disparate
treatment is inexplicable considering that the subject matters of their petition are of
similar importance to the parties and to the public.
IN VIEW WHEREOF, the petition for certiorari and mandamus is granted. The
Order dated May 5, 1992 of the public respondent in NLRC NCR IC No. 000249-92 is
annulled and set aside. The public respondents are likewise ordered to hear and
resolve, with deliberate speed petitioners petition for injunction filed on April 30, 1992.
SO ORDERED.
G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T.
BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO
DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO,
Petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS),
HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, Respondents.
CORTES, J:
Primarily, the issue raised in this petition is whether or not the Regional Trial Court
can enjoin the Social Security System Employees Association (SSSEA) from striking
and order the striking employees to return to work. Collaterally, it is whether or not
employees of the Social Security System (SSS) have the right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a
complaint for damages with a prayer for a writ of preliminary injunction against
petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged
an illegal strike and baricaded the entrances to the SSS Building, preventing non-
striking employees from reporting for work and SSS members from transacting
business with the SSS; that the strike was reported to the Public Sector Labor -
Management Council, which ordered the strikers to return to work; that the strikers
refused to return to work; and that the SSS suffered damages as a result of the strike.
The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike
and that the strikers be ordered to return to work; that the defendants (petitioners
herein) be ordered to pay damages; and that the strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the union's
demands, which included: implementation of the provisions of the old SSS-SSSEA
collective bargaining agreement (CBA) on check-off of union dues; payment of
accrued overtime pay, night differential pay and holiday pay; conversion of temporary
or contractual employees with six (6) months or more of service into regular and
permanent employees and their entitlement to the same salaries, allowances and
benefits given to other regular employees of the SSS; and payment of the children's
allowance of P30.00, and after the SSS deducted certain amounts from the salaries of
the employees and allegedly committed acts of discrimination and unfair labor
practices [Rollo, pp. 21-241].
The court a quo, on June 11, 1987, issued a temporary restraining order pending
resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the
meantime, petitioners filed a motion to dismiss alleging the trial court's lack of
jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an
opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp.
209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to
dismiss and converted the restraining order into an injunction upon posting of a bond,
after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the
reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p.
94], petitioners filed a petition for certiorari and prohibition with preliminary injunction
before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated
October 21, 1987, the Court, through the Third Division, resolved to refer the case to
183
the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during
its pendency the Court of Appeals on March 9,1988 promulgated its decision on the
referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals'
decision. In the meantime, the Court on June 29,1988 denied the motion for
reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to
recall the decision of the Court of Appeals was also denied in view of this Court's
denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant
petition to review the decision of the Court of Appeals [Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a temporary
restraining order enjoining the petitioners from staging another strike or from pursuing
the notice of strike they filed with the Department of Labor and Employment on
January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152].
The Court, taking the comment as answer, and noting the reply and supplemental
reply filed by petitioners, considered the issues joined and the case submitted for
decision.
The position of the petitioners is that the Regional Trial Court had no jurisdiction to
hear the case initiated by the SSS and to issue the restraining order and the writ of
preliminary injunction, as jurisdiction lay with the Department of Labor and
Employment or the National Labor Relations Commission, since the case involves a
labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that the
employees of the SSS are covered by civil service laws and rules and regulations, not
the Labor Code, therefore they do not have the right to strike. Since neither the DOLE
nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the
employees from striking.
In dismissing the petition for certiorari and prohibition with preliminary injunction
filed by petitioners, the Court of Appeals held that since the employees of the SSS, are
government employees, they are not allowed to strike, and may be enjoined by the
Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from
continuing with their strike.
Thus, the sequential questions to be resolved by the Court in deciding whether or
not the Court of Appeals erred in finding that the Regional Trial Court did not act
without or in excess of jurisdiction when it took cognizance of the case and enjoined
the strike are as follows:
1. Do the employees of the SSS have the right to strike?
2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the
SSS and to enjoin the strikers from continuing with the strike and to order them to
return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social Justice and Human Rights, provides
that the State "shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the right to
strike in accordance with law" [Art. XIII, Sec. 31].
By itself, this provision would seem to recognize the right of all workers and
employees, including those in the public sector, to strike. But the Constitution itself fails
to expressly confirm this impression, for in the Sub-Article on the Civil Service
Commission, it provides, after defining the scope of the civil service as "all branches,
subdivisions, instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters," that "[t]he right to
self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l)
and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people,
including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not abridged" [Art. III,
Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of
government employees to organize, it is silent as to whether such recognition also
includes the right to strike.
Resort to the intent of the framers of the organic law becomes helpful in
understanding the meaning of these provisions. A reading of the proceedings of the
Constitutional Commission that drafted the 1987 Constitution would show that in
recognizing the right of government employees to organize, the commissioners
intended to limit the right to the formation of unions or associations only, without
including the right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that
"[tlhe right to self-organization shall not be denied to government employees" [Art.
IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner
Ambrosio B. Padilla, Vice-President of the Commission, explained:
MR. LERUM. I think what I will try to say will not take that long. When we proposed
this amendment providing for self-organization of government employees, it does not
mean that because they have the right to organize, they also have the right to strike.
That is a different matter. We are only talking about organizing, uniting as a union.
With regard to the right to strike, everyone will remember that in the Bill of Rights,
there is a provision that the right to form associations or societies whose purpose is
not contrary to law shall not be abridged. Now then, if the purpose of the state is to
prohibit the strikes coming from employees exercising government functions, that
could be done because the moment that is prohibited, then the union which will go on
strike will be an illegal union. And that provision is carried in Republic Act 875. In
Republic Act 875, workers, including those from the government-owned and controlled,
are allowed to organize but they are prohibited from striking. So, the fear of our
honorable Vice- President is unfounded. It does not mean that because we approve
this resolution, it carries with it the right to strike. That is a different matter. As a matter
of fact, that subject is now being discussed in the Committee on Social Justice
because we are trying to find a solution to this problem. We know that this problem
exist; that the moment we allow anybody in the government to strike, then what will
happen if the members of the Armed Forces will go on strike? What will happen to
those people trying to protect us? So that is a matter of discussion in the Committee
on Social Justice. But, I repeat, the right to form an organization does not carry with it
the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed
by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the
Government, including instrumentalities exercising governmental functions, but
excluding entities entrusted with proprietary functions:
184
 .Sec. 11. Prohibition Against Strikes in the Government. - The terms and conditions
of employment in the Government, including any political subdivision or instrumentality
thereof, are governed by law and it is declared to be the policy of this Act that
employees therein shall not strike for the purpose of securing changes or modification
in their terms and conditions of employment. Such employees may belong to any labor
organization which does not impose the obligation to strike or to join in strike:
Provided, however, That this section shall apply only to employees employed in
governmental functions and not those employed in proprietary functions of the
Government including but not limited to governmental corporations.
No similar provision is found in the Labor Code, although at one time it recognized
the right of employees of government corporations established under the Corporation
Code to organize and bargain collectively and those in the civil service to "form
organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P.
Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of
employment of all government employees, including employees of government owned
and controlled corporations, shall be governed by the Civil Service Law, rules and
regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or
not government employees may strike, for such are excluded from its coverage [Ibid].
But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.
On June 1, 1987, to implement the constitutional guarantee of the right of
government employees to organize, the President issued E.O. No. 180 which provides
guidelines for the exercise of the right to organize of government employees. In
Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing
concerted activities and strikes in the government service shall be observed, subject to
any legislation that may be enacted by Congress." The President was apparently
referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission
under date April 21, 1987 which, "prior to the enactment by Congress of applicable
laws concerning strike by government employees ... enjoins under pain of
administrative sanctions, all government officers and employees from staging strikes,
demonstrations, mass leaves, walk-outs and other forms of mass action which will
result in temporary stoppage or disruption of public service." The air was thus cleared
of the confusion. At present, in the absence of any legislation allowing government
employees to strike, recognizing their right to do so, or regulating the exercise of the
right, they are prohibited from striking, by express provision of Memorandum Circular
No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the
validity of Memorandum Circular No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the 1987
Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities,
and agencies of the Government, including government-owned or controlled
corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No.
180 where the employees in the civil service are denominated as "government
employees"] and that the SSS is one such government-controlled corporation with an
original charter, having been created under R.A. No. 1161, its employees are part of
the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988]
and are covered by the Civil Service Commission's memorandum prohibiting strikes.
This being the case, the strike staged by the employees of the SSS was illegal.
The statement of the Court in Alliance of Government Workers v. Minister of Labor
and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it
furnishes the rationale for distinguishing between workers in the private sector and
government employees with regard to the right to strike:
The general rule in the past and up to the present is that 'the terms and conditions
of employment in the Government, including any political subdivision or instrumentality
thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as
amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the
terms and conditions of government employment are fixed by law, government workers
cannot use the same weapons employed by workers in the private sector to secure
concessions from their employers. The principle behind labor unionism in private
industry is that industrial peace cannot be secured through compulsion by law.
Relations between private employers and their employees rest on an essentially
voluntary basis. Subject to the minimum requirements of wage laws and other labor
and welfare legislation, the terms and conditions of employment in the unionized
private sector are settled through the process of collective bargaining. In government
employment, however, it is the legislature and, where properly given delegated power,
the administrative heads of government which fix the terms and conditions of
employment. And this is effected through statutes or administrative circulars, rules, and
regulations, not through collective bargaining agreements. [At p. 13; Emphasis
supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his
position paper submitted to the 1971 Constitutional Convention, and quoted with
approval by the Court in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the nature of the
public employer and the peculiar character of the public service, it must necessarily
regard the right to strike given to unions in private industry as not applying to public
employees and civil service employees. It has been stated that the Government, in
contrast to the private employer, protects the interest of all people in the public service,
and that accordingly, such conflicting interests as are present in private labor relations
could not exist in the relations between government and those whom they employ. [At
pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313,
January 17,1985,134 SCRA 172,178-179].
E.O. No. 180, which provides guidelines for the exercise of the right to organize of
government employees, while clinging to the same philosophy, has, however, relaxed
the rule to allow negotiation where the terms and conditions of employment involved
are not among those fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or improvements thereof,
except those that are fixed by law, may be the subject of negotiations between duly
recognized employees' organizations and appropriate government authorities.
The same executive order has also provided for the general mechanism for the
settlement of labor disputes in the public sector to wit:
.SECTION 16. The Civil Service and labor laws and procedures, whenever
applicable, shall be followed in the resolution of complaints, grievances and cases
involving government employees. In case any dispute remains unresolved after
exhausting all the available remedies under existing laws and procedures, the parties
185
may jointly refer the dispute to the [Public Sector Labor- Management] Council for restrain the SSS and its agents from withholding payment thereof and to compel the
appropriate action. SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil
Government employees may, therefore, through their unions or associations, either Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA
petition the Congress for the betterment of the terms and conditions of employment who are not preventively suspended and who are reporting for work pending the
which are within the ambit of legislation or negotiate with the appropriate government resolution of the administrative cases against them are entitled to their salaries, year-
agencies for the improvement of those which are not fixed by law. If there be any end bonuses and other fringe benefits and affirmed the previous order of the Merit
unresolved grievances, the dispute may be referred to the Public Sector Labor - Systems Promotion Board.
Management Council for appropriate action. But employees in the civil service may not The matter being extraneous to the issues elevated to this Court, it is Our view that
resort to strikes, walk-outs and other temporary work stoppages, like workers in the petitioners' remedy is not to petition this Court to issue an injunction, but to cause the
private sector, to pressure the Govemment to accede to their demands. As now execution of the aforesaid order, if it has already become final.
provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of WHEREFORE, no reversible error having been committed by the Court of Appeals,
the Right of Government- Employees to Self- Organization, which took effect after the the instant petition for review is hereby DENIED and the decision of the appellate court
instant dispute arose, "[t]he terms and conditions of employment in the government, dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/
including any political subdivision or instrumentality thereof and government- owned Application for Preliminary and Mandatory Injunction" dated December 13,1988 is
and controlled corporations with original charters are governed by law and employees DENIED.
therein shall not strike for the purpose of securing changes thereof."
SO ORDERED.
II
The strike staged by the employees of the SSS belonging to petitioner union being
prohibited by law, an injunction may be issued to restrain it.
It is futile for the petitioners to assert that the subject labor dispute falls within the
exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no
jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The
Labor Code itself provides that terms and conditions of employment of government
employees shall be governed by the Civil Service Law, rules and regulations [Art. 276].
More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council
with jurisdiction over unresolved labor disputes involving government employees [Sec.
16]. Clearly, the NLRC has no jurisdiction over the dispute.
This being the case, the Regional Trial Court was not precluded, in the exercise of
its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction
over the SSS's complaint for damages and issuing the injunctive writ prayed for
therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been
granted by law authority to issue writs of injunction in labor disputes within its
jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over
the instant labor dispute, resort to the general courts of law for the issuance of a writ of
injunction to enjoin the strike is appropriate.
Neither could the court a quo be accused of imprudence or overzealousness, for in
fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the
continuance of the strike to prevent any further disruption of public service, the
respondent judge, in the same order, admonished the parties to refer the unresolved
controversies emanating from their employer- employee relationship to the Public
Sector Labor - Management Council for appropriate action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory Injunction," and
reiterated in their reply and supplemental reply, petitioners allege that the SSS
unlawfully withheld bonuses and benefits due the individual petitioners and they pray
that the Court issue a writ of preliminary prohibitive and mandatory injunction to

186
[G.R. No. 122917. July 12, 1999.]
MARITES BERNARDO, ELVIRA GO DIAMANTE, REBECCA E. DAVID, DAVID P.
PASCUAL, RAQUEL ESTILLER, ALBERT HALLARE, EDMUND M. CORTEZ,
JOSELITO O. AGDON, GEORGE P. LIGUTAN JR., CELSO M. YAZAR, ALEX G.
CORPUZ, RONALD M. DELFIN, ROWENA M. TABAQUERO, CORAZON C. DELOS
REYES, ROBERT G. NOORA, MILAGROS O. LEQUIGAN, ADRIANA F.
TATLONGHARI, IKE CABANDUCOS, COCOY NOBELLO, DORENDA
CANTIMBUHAN, ROBERT MARCELO, LILIBETH Q. MARMOLEJO, JOSE E.
SALES, ISABEL MAMAUAG, VIOLETA G. MONTES, ALBINO TECSON, MELODY
V. GRUELA, BERNADETH D. AGERO, CYNTHIA DE VERA, LANI R. CORTEZ, MA.
ISABEL B. CONCEPTION, DINDO VALERIO, ZENAIDA MATA, ARIEL DEL PILAR,
MARGARET CECILIA CANOZA, THELMA SEBASTIAN, MA. JEANETTE
CERVANTES, JEANNIE RAMIL, ROZAIDA PASCUAL, PINKY BALOLOA,
ELIZABETH VENTURA, GRACE S. PARDO & RICO TIMOSA, Petitioners, v.
NATIONAL LABOR RELATIONS COMMISSION & FAR EAST BANK AND TRUST
COMPANY, Respondents.
PANGANIBAN, J.:
The Magna Carta for Disabled Persons mandates that qualified disabled persons
be granted the same terms and conditions of employment as qualified able-bodied
employees. Once they have attained the status of regular workers, they should be
accorded all the benefits granted by law, notwithstanding written or verbal contracts to
the contrary. This treatment is rooted not merely on charity or accommodation, but on
justice for all.
The Case
Challenged in the Petition for Certiorari 1 before us is the June 20, 1995 Decision 2
of the National Labor Relations Commission (NLRC), 3 which affirmed the August, 22
1994 ruling of Labor Arbiter Cornelio L. Linsangan. The labor arbiters Decision
disposed as follows: 4
"WHEREFORE, judgment is hereby rendered dismissing the above-mentioned
complaint for lack of merit."
Also assailed is the August 4, 1995 Resolution 5 of the NLRC, which denied the
Motion for Reconsideration.
The Facts
The facts were summarized by the NLRC in this wise: 6
"Complainants numbering 43 (p. 176, Records) are deaf-mutes who were hired on
various periods from 1988 to 1993 by respondent Far East Bank and Trust Co. as
Money Sorters and Counters through a uniformly worded agreement called
Employment Contract for Handicapped Workers. (pp. 68 & 69, Records) The full text
of said agreement is quoted below:
EMPLOYMENT CONTRACT FOR HANDICAPPED WORKERS
This Contract, entered into by and between:
FAR EAST BANK AND TRUST COMPANY, a universal banking corporation duly
organized and existing under and by virtue of the laws of the Philippines, with business
address at FEBTC Building, Muralla, Intramuros, Manila, represented herein by its
Assistant Vice President, MR. FLORENDO G. MARANAN, (hereinafter referred to as
the BANK);
- and -
________________, ________________ years old, of legal age, _____________,
and residing at __________________ (hereinafter referred to as the (EMPLOYEE).
WITNESSETH: That
WHEREAS, the BANK, cognizant of its social responsibility, realizes that there is a
need to provide disabled and handicapped persons gainful employment and
opportunities to realize their potentials, uplift their socio-economic well being and
welfare and make them productive, self-reliant and useful citizens to enable them to
fully integrate in the mainstream of society;
WHEREAS, there are certain positions in the BANK which may be filled-up by
disabled and handicapped persons, particularly deaf-mutes, and the BANK ha[s] been
approached by some civic-minded citizens and authorized government agencies
[regarding] the possibility of hiring handicapped workers for these positions;
WHEREAS, the EMPLOYEE is one of those handicapped workers who [were]
recommended for possible employment with the BANK;
NOW, THEREFORE, for and in consideration of the foregoing premises and in
compliance with Article 80 of the Labor Code of the Philippines as amended, the BANK
and the EMPLOYEE have entered into this Employment Contract as follows:
1. The BANK agrees to employ and train the EMPLOYEE, and the EMPLOYEE
agrees to diligently and faithfully work with the BANK, as Money Sorter and Counter.
2. The EMPLOYEE shall perform among others, the following duties and
responsibilities:
i. Sort out bills according to color;
ii. Count each denomination per hundred, either manually or with the aid of a
counting machine;
iii. Wrap and label bills per hundred;
iv. Put the wrapped bills into bundles; and
v. Submit bundled bills to the bank teller for verification.
3. The EMPLOYEE shall undergo a training period of one (1) month, after which
the BANK shall determine whether or not he/she should be allowed to finish the
remaining term of this Contract.
4. The EMPLOYEE shall be entitled to an initial compensation of P118.00 per day,
subject to adjustment in the sole judgment of the BANK, payable every 15th and end
of the month.
5. The regular work schedule of the EMPLOYEE shall be five (5) days per week,
from Mondays thru Fridays, at eight (8) hours a day. The EMPLOYEE may be required
to perform overtime work as circumstance may warrant, for which overtime work he/
187
she [shall] be paid an additional compensation of 125% of his daily rate if performed
during ordinary days and 130% if performed during Saturday or [a] rest day.
6. The EMPLOYEE shall likewise be entitled to the following benefits:
i. Proportionate 13th month pay based on his basic daily wage.
ii. Five (5) days incentive leave.
iii. SSS premium payment.
7. The EMPLOYEE binds himself/herself to abide [by] and comply with all the
BANK Rules and Regulations and Policies, and to conduct himself/herself in a manner
expected of all employees of the BANK.
8. The EMPLOYEE acknowledges the fact that he/she had been employed under a
special employment program of the BANK, for which reason the standard hiring
requirements of the BANK were not applied in his/her case. Consequently, the
EMPLOYEE acknowledges and accepts the fact that the terms and conditions of the
employment generally observed by the BANK with respect to the BANKs regular
employee are not applicable to the EMPLOYEE, and that therefore, the terms and
conditions of the EMPLOYEEs employment with the BANK shall be governed solely
and exclusively by this Contract and by the applicable rules and regulations that the
Department of Labor and Employment may issue in connection with the employment
of disabled and handicapped workers. More specifically, the EMPLOYEE hereby
acknowledges that the provisions of Book Six of the Labor Code of the Philippines as
amended, particularly on regulation of employment and separation pay are not
applicable to him/her.
9. The Employment Contract shall be for a period of six (6) months or from ____ to
____ unless earlier terminated by the BANK for any just or reasonable cause. Any
continuation or extension of this Contract shall be in writing and therefore this Contract
will automatically expire at the end of its terms unless renewed in writing by the BANK.
IN WITNESS WHEREOF, the parties, have hereunto affixed their signature[s] this
____ day of _________________, ____________ at Intramuros, Manila, Philippines.
"In 1988, two (2) deaf-mutes were hired under this Agreement; in 1989 another two
(2); in 1990, nineteen (19); in 1991 six (6); in 1992, six (6) and in 1993, twenty-one
(21). Their employment[s] were renewed every six months such that by the time this
case arose, there were fifty-six (56) deaf-mutes who were employed by respondent
under the said employment agreement. The last one was Thelma Malindoy who was
employed in 1992 and whose contract expired on July 1993.
xxx
"Disclaiming that complainants were regular employees, respondent Far East Bank
and Trust Company maintained that complainants who are a special class of workers
the hearing impaired employees were hired temporarily under [a] special
employment arrangement which was a result of overtures made by some civic and
political personalities to the respondent Bank; that complainant[s] were hired due to
pakiusap which must be considered in the light of the context of the respondent
Banks corporate philosophy as well as its career and working environment which is to
maintain and strengthen a corps of professionals trained and qualified officers and
regular employees who are baccalaureate degree holders from excellent schools
which is an unbending policy in the hiring of regular employees; that in addition to this,
training continues so that the regular employee grows in the corporate ladder; that the
idea of hiring handicapped workers was acceptable to them only on a special
arrangement basis; that it adopted the special program to help tide over a group of
handicapped workers such as deaf-mutes like the complainants who could do manual
work for the respondent Bank; that the task of counting and sorting of bills which was
being performed by tellers could be assigned to deaf-mutes; that the counting and
sorting of money are tellering works which were always logically and naturally part and
parcel of the tellers normal functions; that from the beginning there have been no
separate items in the respondent Bank plantilla for sorters or counters; that the tellers
themselves already did the sorting and counting chore as a regular feature and integral
part of their duties (p. 97, Records); that through the pakiusap of Arturo Borjal, the
tellers were relieved of this task of counting and sorting bills in favor of deaf-mutes
without creating new positions as there is no position either in the respondent or in any
other bank in the Philippines which deals with purely counting and sorting of bills in
banking operations."
Petitioners specified when each of them was hired and dismissed, viz: 7
"NAME OF PETITIONER WORKPLACE Date Hired Date Dismissed
1. MARITES BERNARDO Intramuros 12 NOV 90 17 NOV 93
2. ELVIRA GO DIAMANTE Intramuros 24 JAN 90 11 JAN 94
3. REBECCA E. DAVID Intramuros 16 APR 90 23 OCT 93
4. DAVID P. PASCUAL Bel-Air 15 OCT 88 21 NOV 94
5. RAQUEL ESTILLER Intramuros 2 JUL 92 4 JAN 94
6. ALBERT HALLARE West 4 JAN 91 9 JAN 94
7. EDMUND M. CORTEZ Bel-Air 15 JAN 91 3 DEC 93
8. JOSELITO O. AGDON Intramuros 5 NOV 90 17 NOV 93
9. GEORGE P. LIGUTAN, JR. Intramuros 6 SEPT 89 19 JAN 94
10. CELSO M. YAZAR Intramuros 8 FEB 93 8 AUG 93
11. ALEX G. CORPUZ Intramuros 15 FEB 93 15 AUG 93
12. RONALD M. DELFIN Intramuros 22 FEB 93 22 AUG 93
13. ROWENA M. TABAQUERO Intramuros 22 FEB 93 22 AUG 93
14. CORAZON C. DELOS REYES Intramuros 8 FEB 93 8 AUG 93
15. ROBERT G. NOORA Intramuros 15 FEB 93 15 AUG 93
16. MILAGROS O. LEQUIGAN Intramuros 1 FEB 93 1 AUG 93
17. ADRIANA F. TATLONGHARI Intramuros 22 JAN 93 22 JUL 93
18. IKE CABANDUCOS Intramuros 24 FEB 93 24 AUG 93
19. COCOY NOBELLO Intramuros 22 FEB 93 22 AUG 93
20. DORENDA CATIMBUHAN Intramuros 15 FEB 93 15 AUG 93
21. ROBERT MARCELO West 31 JUL 93 8 1 AUG 93
22. LILIBETH Q. MARMOLEJO West 15 JUN 90 21 NOV 93
188
 23. JOSE E. SALES West 6 AUG 92 12 OCT 93
24. ISABEL MAMAUAG West 8 MAY 92 10 NOV 93
25. VIOLETA G. MONTES Intramuros 2 FEB 90 15 JAN 94
26. ALBINO TECSON Intramuros 7 NOV 91 10 NOV 93
27. MELODY V. GRUELA West 28 OCT 91 3 NOV 93
28. BERNADETH D. AGERO West 19 DEC 90 27 DEC 93
29. CYNTHIA DE VERA Bel-Air 26 JUN 90 3 DEC 93
30. LANI R. CORTEZ Bel-Air 15 OCT 88 10 DEC 93
31. MA. ISABEL B. CONCEPTION West 6 SEPT 90 6 FEB 94
32. DINDO VALERIO Intramuros 30 MAY 93 30 NOV 93
33. ZENAIDA MATA Intramuros 10 FEB 93 10 AUG 93
34. ARIEL DEL PILAR Intramuros 24 FEB 93 24 AUG 93
35. MARGARET CECILIA CANOZA Intramuros 27 JUL 90 4 FEB 94
36. THELMA SEBASTIAN Intramuros 12 NOV 90 17 NOV 93
37. MA. JEANETTE CERVANTES West 6 JUN 92 7 DEC 93
38. JEANNIE RAMIL Intramuros 23 APR 90 12 OCT 93
39. ROZAIDA PASCUAL Bel-Air 20 APR 89 29 OCT 93
40. PINKY BALOLOA West 3 JUN 91 2 DEC 93
41. ELIZABETH VENTURA West 12 MAR 90 FEB 94 [sic]
42. GRACE S. PARDO West 4 APR 90 13 MAR 94
43. RICO TIMOSA Intramuros 28 APR 93 28 OCT 93"
As earlier noted, the labor arbiter and, on appeal, the NLRC ruled against herein
petitioners. Hence, this recourse to this Court. 9
The Ruling of the NLRC
In affirming the ruling of the labor arbiter that herein petitioners could not be
deemed regular employees under Article 280 of the Labor Code, as amended,
Respondent Commission ratiocinated as follows:
"We agree that Art. 280 is not controlling herein. We give due credence to the
conclusion that complainants were hired as an accommodation to [the]
recommendation of civic oriented personalities whose employment[s] were covered
by . . . Employment Contract[s] with special provisions on duration of contract as
specified under Art. 80. Hence, as correctly held by the Labor Arbiter a quo, the terms
of the contract shall be the law between the parties." 10
The NLRC also declared that the Magna Carta for Disabled Persons was not
applicable, "considering the prevailing circumstances/milieu of the case."
Issues
In their Memorandum, petitioners cite the following grounds in support of their
cause:
"I. The Honorable Commission committed grave abuse of discretion in holding that
the petitioners money sorters and counters working in a bank were not regular
employees.
"II. The Honorable Commission committed grave abuse of discretion in holding that
the employment contracts signed and renewed by the petitioners which provide for
a period of six (6) months were valid.
"III. The Honorable Commission committed grave abuse of discretion in not
applying the provisions of the Magna Carta for the Disabled (Republic Act No. 7277),
on proscription against discrimination against disabled persons." 11
In the main, the Court will resolve whether petitioners have become regular
employees.
This Courts Ruling
The petition is meritorious. However, only the employees, who worked for more
than six months and whose contracts were renewed are deemed regular. Hence, their
dismissal from employment was illegal.
Preliminary Matter: Propriety of Certiorari
Respondent Far East Bank and Trust Company argues that a review of the findings
of facts of the NLRC is not allowed in a petition for certiorari. Specifically, it maintains
that the Court cannot pass upon the findings of public respondents that petitioners
were not regular employees.
True, the Court, as a rule, does not review the factual findings of public
respondents in a certiorari proceeding. In resolving whether the petitioners have
become regular employees, we shall not change the facts found by the public
Respondent. Our task is merely to determine whether the NLRC committed grave
abuse of discretion in applying the law to the established facts, as above-quoted from
the assailed Decision.
Main Issue: Are Petitioners Regular Employees?
Petitioners maintain that they should be considered regular employees, because
their task as money sorters and counters was necessary and desirable to the business
of respondent bank. They further allege that their contracts served merely to preclude
the application of Article 280 and to bar them from becoming regular employees.
Private respondent, on the other hand, submits that petitioners were hired only as
"special workers and should not in any way be considered as part of the regular
complement of the Bank." 12 Rather, they were "special" workers under Article 80 of
the Labor Code. Private respondent contends that it never solicited the services of
petitioners, whose employment was merely an "accommodation" in response to the
requests of government officials and civic-minded citizens. They were told from the
start, "with the assistance of government representatives," that they could not become
regular employees because there were no plantilla positions for "money sorters,"
whose task used to be performed by tellers. Their contracts were renewed several
times, not because of need "but merely for humanitarian reasons." Respondent
submits that "as of the present, the special position that was created for the
petitioners no longer exist[s] in private respondent [bank], after the latter had decided
not to renew anymore their special employment contracts."
189
 At the outset, let it be known that this Court appreciates the nobility of private
respondents effort to provide employment to physically impaired individuals and to
make them more productive members of society. However, we cannot allow it to elude
the legal consequences of that effort, simply because it now deems their employment
irrelevant. The facts, viewed in light of the Labor Code and the Magna Carta for
Disabled Persons, indubitably show that the petitioners, except sixteen of them, should
be deemed regular employees. As such, they have acquired legal rights that this Court
is duty-bound to protect and uphold, not as a matter of compassion but as a
consequence of law and justice.
The uniform employment contracts of the petitioners stipulated that they shall be
trained for a period of one month, after which the employer shall determine whether or
not they should be allowed to finish the 6-month term of the contract. Furthermore, the
employer may terminate the contract at any time for a just and reasonable cause.
Unless renewed in writing by the employer, the contract shall automatically expire at
the end of the term.
According to private respondent, the employment contracts were prepared in
accordance with Article 80 of the Labor Code, which provides:
"ARTICLE 80. Employment agreement. Any employer who employs
handicapped workers shall enter into an employment agreement with them, which
agreement shall include:
(a) The names and addresses of the handicapped workers to be employed;
(b) The rate to be paid the handicapped workers which shall be not less than
seventy five (75%) per cent of the applicable legal minimum wage;
(c) The duration of employment period; and
(d) The work to be performed by handicapped workers.
The employment agreement shall be subject to inspection by the Secretary of
Labor or his duly authorized representatives."
The stipulations in the employment contracts indubitably conform with the
aforecited provision. Succeeding events and the enactment of RA No. 7277 (the
Magna Carta for Disabled Persons), 13 however, justify the application of Article 280 of
the Labor Code.
Respondent bank entered into the aforesaid contract with a total of 56
handicapped workers and renewed the contracts of 37 of them. In fact, two of them
worked from 1988 to 1993. Verily, the renewal of the contracts of the handicapped
workers and the hiring of others lead to the conclusion that their tasks were beneficial
and necessary to the bank. More important, these facts show that they were qualified
to perform the responsibilities of their positions. In other words, their disability did not
render them unqualified or unfit for the tasks assigned to them.
In this light, the Magna Carta for Disabled Persons mandates that a qualified
disabled employee should be given the same terms and conditions of employment as
a qualified able-bodied person. Section 5 of the Magna Carta provides:
"SECTION 5. Equal Opportunity for Employment. No disabled person shall be
denied access to opportunities for suitable employment. A qualified disabled employee
shall be subject to the same terms and conditions of employment and the same
compensation, privileges, benefits, fringe benefits, incentives or allowances as a
qualified able bodied person."
The fact that the employees were qualified disabled persons necessarily removes
the employment contracts from the ambit of Article 80. Since the Magna Carta accords
them the rights of qualified able-bodied persons, they are thus covered by Article 280
of the Labor Code, which provides:
"ARTICLE 280. Regular and Casual Employment. The provisions of written
agreement to the contrary notwithstanding and regardless of the oral agreement of the
parties, an employment shall be deemed to be regular where the employee has been
engaged to perform activities which are usually necessary or desirable in the usual
business or trade of the employer, except where the employment has been fixed for a
specific project or undertaking the completion or termination of which has been
determined at the time of the engagement of the employee or where the work or
services to be performed is seasonal in nature and the employment is for the duration
of the season.
"An employment shall be deemed to be casual if it is not covered by the preceding
paragraph: Provided, That, any employee who has rendered at least one year of
service, whether such service is continuous or broken, shall be considered as regular
employee with respect to the activity in which he is employed and his employment
shall continue while such activity exists."
The test of whether an employee is regular was laid down in De Leon v. NLRC , 14
in which this Court held:
"The primary standard, therefore, of determining regular employment is the
reasonable connection between the particular activity performed by the employee in
relation to the usual trade or business of the employer. The test is whether the former
is usually necessary or desirable in the usual business or trade of the employer. The
connection can be determined by considering the nature of the work performed and its
relation to the scheme of the particular business or trade in its entirety. Also if the
employee has been performing the job for at least one year, even if the performance is
not continuous and merely intermittent, the law deems repeated and continuing need
for its performance as sufficient evidence of the necessity if not indispensability of that
activity to the business. Hence, the employment is considered regular, but only with
respect to such activity, and while such activity exists."
Without a doubt, the task of counting and sorting bills is necessary and desirable to
the business of respondent bank. With the exception of sixteen of them, petitioners
performed these tasks for more than six months. Thus, the following twenty-seven
petitioners should be deemed regular employees: Marites Bernardo, Elvira Go
Diamante, Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare,
Edmund M. Cortez, Joselito O. Agdon, George P. Ligutan Jr., Lilibeth Q. Marmolejo,
Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino Tecson, Melody V. Gruela,
Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Conception,
Margaret Cecilia Canoza, Thelma Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil,
Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura and Grace S. Pardo.
As held by the Court, "Articles 280 and 281 of the Labor Code put an end to the
pernicious practice of making permanent casuals of our lowly employees by the simple
expedient of extending to them probationary appointments, ad infinitum." 15 The
contract signed by petitioners is akin to a probationary employment, during which the
190
bank determined the employees fitness for the job. When the bank renewed the
contract after the lapse of the six-month probationary period, the employees thereby
became regular employees. 16 No employer is allowed to determine indefinitely the
fitness of its employees.
As regular employees, the twenty-seven petitioners are entitled to security of
tenure; that is, their services may be terminated only for a just or authorized cause.
Because respondent failed to show such cause, 17 these twenty-seven petitioners are
deemed illegally dismissed and therefore entitled to back wages and reinstatement
without loss of seniority rights and other privileges. 18 Considering the allegation of
respondent that the job of money sorting is no longer available because it has been
assigned back to the tellers to whom it originally belonged, 19 petitioners are hereby
awarded separation pay in lieu of reinstatement. 20
Because the other sixteen worked only for six months, they are not deemed regular
employees and hence not entitled to the same benefits.
Applicability of the Brent Ruling
Respondent bank, citing Brent School v. Zamora, 21 in which the Court upheld the
validity of an employment contract with a fixed term, argues that the parties entered
into the contract on equal footing. It adds that the petitioners had in fact an advantage,
because they were backed by then DSWD Secretary Mita Pardo de Tavera and
Representative Arturo Borjal.
We are not persuaded. The term limit in the contract was premised on the fact that
the petitioners were disabled, and that the bank had to determine their fitness for the
position. Indeed, its validity is based on Article 80 of the Labor Code. But as noted
earlier, petitioners proved themselves to be qualified disabled persons who, under the
Magna Carta for Disabled Persons, are entitled to terms and conditions of employment
enjoyed by qualified able-bodied individuals; hence, Article 80 does not apply because
petitioners are qualified for their positions. The validation of the limit imposed on their
contracts, imposed by reason of their disability, was a glaring instance of the very
mischief sought to be addressed by the new law.
Moreover, it must be emphasized that a contract of employment is impressed with
public interest. 22 Provisions of applicable statutes are deemed written into the
contract, and the "parties are not at liberty to insulate themselves and their
relationships from the impact of labor laws and regulations by simply contracting with
each other." 23 Clearly, the agreement of the parties regarding the period of
employment cannot prevail over the provisions of the Magna Carta for Disabled
Persons, which mandate that petitioners must be treated as qualified able-bodied
employees.
Respondents reason for terminating the employment of petitioners is instructive.
Because the Bangko Sentral ng Pilipinas (BSP) required that cash in the bank be
turned over to the BSP during business hours from 8:00 a.m. to 5:00 p.m., respondent
resorted to nighttime sorting and counting of money. Thus, it reasons that this task
"could not be done by deaf mutes because of their physical limitations as it is very
risky for them to travel at night." 24 We find no basis for this argument. Travelling at
night involves risks to handicapped and able-bodied persons alike. This excuse cannot
justify the termination of their employment.
Other Grounds Cited by Respondent
Respondent argues that petitioners were merely "accommodated" employees. This
fact does not change the nature of their employment. As earlier noted, an employee is
regular because of the nature of work and the length of service, not because of the
mode or even the reason for hiring them.
Equally unavailing are private respondents arguments that it did not go out of its
way to recruit petitioners, and that its plantilla did not contain their positions. In L. T .
Datu v. NLRC, 25 the Court held that "the determination of whether employment is
casual or regular does not depend on the will or word of the employer, and the
procedure of hiring . . . but on the nature of the activities performed by the employee,
and to some extent, the length of performance and its continued existence."
Private respondent argues that the petitioners were informed from the start that
they could not become regular employees. In fact, the bank adds, they agreed with the
stipulation in the contract regarding this point. Still, we are not persuaded. The well-
settled rule is that the character of employment is determined not by stipulations in the
contract, but by the nature of the work performed. 26 Otherwise, no employee can
become regular by the simple expedient of incorporating this condition in the contract
of employment.
In this light, we iterate our ruling in Romares v. NLRC : 27
"Article 280 was emplaced in our statute books to prevent the circumvention of the
employees right to be secure in his tenure by indiscriminately and completely ruling
out all written and oral agreements inconsistent with the concept of regular
employment defined therein. Where an employee has been engaged to perform
activities which are usually necessary or desirable in the usual business of the
employer, such employee is deemed a regular employee and is entitled to security of
tenure notwithstanding the contrary provisions of his contract of employment.
"xxx
"At this juncture, the leading case of Brent School, Inc. v. Zamora proves
instructive. As reaffirmed in subsequent cases, this Court has upheld the legality of
fixed-term employment. It ruled that the decisive determinant in term employment
should not be the activities that the employee is called upon to perform but the day
certain agreed upon the parties for the commencement and termination of their
employment relationship. But this Court went on to say that where from the
circumstances it is apparent that the periods have been imposed to preclude
acquisition of tenurial security by the employee, they should be struck down or
disregarded as contrary to public policy and morals."
In rendering this Decision, the Court emphasizes not only the constitutional bias in
favor of the working class, but also the concern of the State for the plight of the
disabled. The noble objectives of Magna Carta for Disabled Persons are not based
merely on charity or accommodation, but on justice and the equal treatment of
qualified persons, disabled or not. In the present case, the handicap of petitioners
(deaf-mutes) is not a hindrance to their work. The eloquent proof of this statement is
the repeated renewal of their employment contracts. Why then should they be
dismissed, simply because they are physically impaired? The Court believes, that,
after showing their fitness for the work assigned to them, they should be treated and
granted the same rights like any other regular employees.
191
 In this light, we note the Office of the Solicitor Generals prayer joining the
petitioners cause. 28
WHEREFORE, premises considered, the Petition is hereby GRANTED. The June
20, 1995 Decision and the August 4, 1995 Resolution of the NLRC are REVERSED
and SET ASIDE. Respondent Far East Bank and Trust Company is hereby ORDERED
to pay back wages and separation pay to each of the following twenty-seven (27)
petitioners, namely, Marites Bernardo, Elvira Go Diamante, Rebecca E. David, David
P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez, Joselito O. Agdon,
George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta
G. Montes, Albino Tecson, Melody V. Gruela, Bernadeth D. Agero, Cynthia de Vera,
Lani R. Cortez, Ma. Isabel B. Conception, Margaret Cecilia Canoza, Thelma
Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky Baloloa,
Elizabeth Ventura and Grace S. Pardo. The NLRC is hereby directed to compute the
exact amount due each of said employees, pursuant to existing laws and regulations,
within fifteen days from the finality of this Decision. No costs.
SO ORDERED.
G.R. No. L-40779 November 28, 1975
EPICHARIS T. GARCIA, Petitioner, vs. THE FACULTY ADMISSION COMMITTEE,
LOYOLA SCHOOL OF THEOLOGY, herein represented by FR. ANTONIO B.
LAMBINO, Respondent.
FERNANDO, J.:
The specific issue posed by this mandamus proceeding to compel the Faculty
Admission Committee of the Loyola School of Theology, represented by Father
Antonio B. Lambino, to allow petitioner Epicharis T. Garcia, to continue studying
therein is whether she is deemed possessed of such a right that has to be respected.
That is denied not only on general principle, but also in view of the character of the
particular educational institution involved. It is a seminary. It would appear therefore
that at most she can lay claim to a privilege, no duty being cast on respondent school.
Moreover, as a reinforcement to such an obvious conclusion, there is the autonomy
recognized by the Constitution in this explicit language: "All institutions of higher
learning shall enjoy academic freedom." 1 The petition must therefore fail.
Petitioner alleged: "3. That in summer, 1975, Respondent admitted Petitioner for
studies leading to an M.A. in Theology; 4. That on May 30, 1975, when Petitioner
wanted to enroll for the same course for the first semester, 1975-76, Respondent told
her about the letter he had written her, informing her of the faculty's decision to bar her
from re-admission in their school; 5. That the reasons stated in said letter, dated May
19, 1975 ... do not constitute valid legal ground for expulsion, for they neither present
any violation of any of the school's regulation, nor are they indicative of gross
misconduct; 6. That from June 25, 1975, Petitioner spent much time and effort in said
school for the purpose of arriving at a compromise that would not duly inconvenience
the professors and still allow her to enjoy the benefits of the kind of instruction that the
school has to offer, but all in vain; she was in fact told by Fr. Pedro Sevilla, the school's
Director, that the compromises she was offering were unacceptable, their decision was
final, and that it were better for her to seek for admission at the UST Graduate School;
7 Petitioner then subsequently made inquiries in said school, as to the possibilities for
her pursuing her graduate studies for an for M.A. in Theology, and she was informed
that she could enroll at the UST Ecclesiastical Faculties, but that she would have to
fulfill their requirements for Baccalaureate in Philosophy in order to have her degree
later in Theology - which would entail about four to five years more of studies -
whereas in the Loyola School of Studies to which she is being unlawfully refused
readmission, it would entail only about two years more; 8. That Petitioner, considering
that time was of the essence in her case, and not wanting to be deprived of an
opportunity for gaining knowledge necessary for her life's work, enrolled as a special
student at said UST Ecclesiastical Faculties, even if she would not thereby be credited
with any academic units for the subject she would take; 9. That Petitioner could have
recourse neither to the President of her school, Fr. Jose Cruz, he being with the First
Couple's entourage now in Red China, nor with the Secretary of Education, since this
is his busiest time of the year, and June 11, 1975 is the last day for registration; ... " 2
She prayed for a writ of mandamus for the purpose of allowing her to enroll in the
current semester. She made it more specific in a pleading she called Amended Petition
so that she would be allowed cross-enrollment even beyond the June 11, 1975
deadline for registration and that whatever units may be accredited to her in the UST
192
Ecclesiastical Faculties be likewise recognized by respondent. Her petition included
the letter of respondent Father Lambino which started on a happy note that she was
given the grade of B+ and B in two theology subjects, but ended in a manner far from
satisfactory for her, as shown by this portion thereof: "Now, you will have to forgive me
for going into a matter which is not too pleasant. The faculty had a meeting after the
summer session and several members are strongly opposed to having you back with
us at Loyola School of Theology. In the spirit of honesty may I report this to you as
their reason: They felt that your frequent questions and difficulties were not always
pertinent and had the effect of slowing down the progress of the class; they felt you
could have tried to give the presentation a chance and exerted more effort to
understand the point made before immediately thinking of difficulties and problems.
The way things are, I would say that the advisability of your completing a program
(with all the course work and thesis writing) with us is very questionable. That you
have the requisite intellectual ability is not to be doubted. But it would seem to be in
your best interests to work with a faculty that is more compatible with your orientation. I
regret to have to make this report, but I am only thinking of your welfare." 3
This Court, in a resolution of June 23, 1975, required comment on the part of
respondent Faculty Admission Committee, Loyola School of Theology. 4 As submitted
on behalf of Father Lambino, it set forth the following: "Respondent is the Chairman of
the Faculty Admission Committee of the Loyola School of Theology, which is a
religious seminary situated in Loyola Heights, Quezon City; In collaboration with the
Ateneo de Manila University, the Loyola School of Theology allows some lay students
to attend its classes and/or take courses in said Loyola School of Theology but the
degree, if any, to be obtained from such courses is granted by the Ateneo de Manila
University and not by the Loyola School of Theology; For the reason above given, lay
students admitted to the Loyola School of Theology to take up courses for credit
therein have to be officially admitted by the Assistant Dean of the Graduate School of
the Ateneo de Manila University in order for them to be considered as admitted to a
degree program; Petitioner in the summer of 1975 was admitted by respondent to take
some courses for credit but said admission was not an admission to a degree program
because only the Assistant Dean of the Ateneo de Manila Graduate School can make
such admission; That in the case of petitioner, no acceptance by the Assistant Dean of
the Ateneo de Manila Graduate School was given, so that she was not accepted to a
degree program but was merely allowed to take some courses for credit during the
summer of 1975; Furthermore, petitioner was not charged a single centavo by the
Loyola School of Theology and/or the Ateneo de Manila University in connection with
the courses she took in the summer of 1975, as she was allowed to take it free of
charge; That respondent Fr. Antonio B. Lambino, S.J., and/or the Loyola School of
Theology thru its Faculty Admission Committee, necessarily has discretion as to
whether to admit and/or to continue admitting in the said school any particular student,
considering not only academic or intellectual standards but also other considerations
such as personality traits and character orientation in relation with other students as
well as considering the nature of Loyola School of Theology as a seminary. The
Petition for Mandamus therefore does not lie, as there is no duty, much less a clear
duty, on the part of respondent to admit the petitioner therein in the current year to take
up further courses in the Loyola School of Theology." 5 It was likewise alleged in the
aforesaid comment that as set forth in the letter of May 19, 1975, the decision not to
allow petitioner to take up further courses in said seminary "is not arbitrary, as it is
based on reasonable grounds, ... ." 6 Then reference was made to the availability of
non-judicial remedies which petitioner could have pursued. 7 The prayer was for the
dismissal of the petition for lack of merit. Petitioner sought permission to reply and it
was granted. Thereafter, she had a detailed recital of why under the circumstances
she is entitled to relief from the courts. In a resolution of August 8, 1975, this Court
considered the comment of respondent as answer and required the parties to file their
respective memoranda. That they did, and the petition was deemed submitted for
decision. As was made clear at the outset, we do not see merit in it. It must therefore
be dismissed.
1. In respondent's memorandum, it was made clear why a petition for mandamus is
not the proper remedy. Thus: "Petitioner cannot compel by mandamus, the respondent
to admit her into further studies in the Loyola School of Theology. For respondent has
no clear duty to so admit the petitioner. The Loyola School of Theology is a seminary
for the priesthood. Petitioner is admittedly and obviously not studying for the
priesthood, she being a lay person and a woman. And even assuming ex gratia
argumenti that she is qualified to study for the priesthood, there is still no duty on the
part of respondent to admit her to said studies, since the school has clearly the
discretion to turn down even qualified applicants due to limitations of space, facilities,
professors and optimum classroom size and component considerations." 8 No
authorities were cited, respondent apparently being of the view that the law has not
reached the stage where the matter of admission to an institution of higher learning
rests on the sole and uncontrolled discretion of the applicant. There are standards that
must be met. There are policies to be pursued. Discretion appears to be of the
essence. In terms of Hohfeld's terminology, what a student in the position of petitioner
possesses is a privilege rather than a right. She cannot therefore satisfy the prime and
indispensable requisite of a mandamus proceeding. Such being the case, there is no
duty imposed on the Loyola School of Theology. In a rather comprehensive
memorandum of petitioner, who unfortunately did not have counsel, an attempt was
made to dispute the contention of respondent. There was a labored effort to sustain
her stand, but it was not sufficiently persuasive. It is understandable why. It was the
skill of a lay person rather than a practitioner that was evident. While she pressed her
points with vigor, she was unable to demonstrate the existence of the clear legal right
that must exist to justify the grant of this writ.
2. Nor is this all. There is, as previously noted, the recognition in the Constitution of
institutions of higher learning enjoying academic freedom. It is more often identified
with the right of a faculty member to pursue his studies in his particular specialty and
thereafter to make known or publish the result of his endeavors without fear that
retribution would be visited on him in the event that his conclusions are found
distasteful or objectionable to the powers that be, whether in the political, economic, or
academic establishments. For the sociologist, Robert McIver it is "a right claimed by
the accredited educator, as teacher and as investigator, to interpret his findings and to
communicate his conclusions without being subjected to any interference, molestation,
or penalization because these conclusions are unacceptable to some constituted
authority within or beyond the institution." 9 As for the educator and philosopher
Sidney Hook, this is his version: "What is academic freedom? Briefly put, it is the
freedom of professionally qualified persons to inquire, discover, publish and teach the
truth as they see it in the field of their competence. It is subject to no control or
authority except the control or authority of the rational methods by which truths or
conclusions are sought and established in these disciplines." 10
193
 3. That is only one aspect though. Such a view does not comprehend fully the
scope of academic freedom recognized by the Constitution. For it is to be noted that
the reference is to the "institutions of higher learning" as the recipients of this boon. It
would follow then that the school or college itself is possessed of such a right. It
decides for itself its aims and objectives and how best to attain them. It is free from
outside coercion or interference save possibly when the overriding public welfare calls
for some restraint. It has a wide sphere of autonomy certainly extending to the choice
of students. This constitutional provision is not to be construed in a niggardly manner
or in a gradging fashion. That would be to frustrate its purpose, nullify its intent. Former
President Vicente G. Sinco of the University of the Philippines, in his Philippine
Political Law, is similarly of the view that it "definitely grants the right of academic
freedom to the university as an institution as distinguished from the academic freedom
of a university professor." 11 He cited the following from Dr. Marcel Bouchard, Rector
of the University of Dijon, France, President of the conference of rectors and vice-
chancellors of European universities: " "It is a well-established fact, and yet one which
sometimes tends to be obscured in discussions of the problems of freedom, that the
collective liberty of an organization is by no means the same thing as the freedom of
the individual members within it; in fact, the two kinds of freedom are not even
necessarily connected. In considering the problems of academic freedom one must
distinguish, therefore, between the autonomy of the university, as a corporate body,
and the freedom of the individual university teacher." " 12 Also: "To clarify further the
distinction between the freedom of the university and that of the individual scholar, he
says: "The personal aspect of freedom consists in the right of each university teacher -
recognized and effectively guaranteed by society - to seek and express the truth as he
personally sees it, both in his academic work and in his capacity as a private citizen.
Thus the status of the individual university teacher is at least as important, in
considering academic freedom, as the status of the institutions to which they belong
and through which they disseminate their learning."' 13 He likewise quoted from the
President of the Queen's University in Belfast, Sir Eric Ashby: "'The internal conditions
for academic freedom in a university are that the academic staff should have de facto
control of the following functions: (i) the admission and examination of students; (ii) the
curricula for courses of study; (iii) the appointment and tenure of office of academic
staff; and (iv) the allocation of income among the different categories of expenditure. It
would be a poor prospect for academic freedom if universities had to rely on the literal
interpretation of their constitutions in order to acquire for their academic members
control of these four functions, for in one constitution or another most of these
functions are laid on the shoulders of the law governing body .'" 14 Justice Frankfurter,
with his extensive background in legal education as a former Professor of the Harvard
Law School, referred to what he called the business of a university and the four
essential freedoms in the following language: "It is the business of a university to
provide that atmosphere which is most conducive to speculation, experiment and
creation. It is an atmosphere in which there prevail "the four essential freedoms" of a
university - to determine for itself on academic grounds who may teach, what may be
taught, how it shall be taught, and who may be admitted to study." 15 Thus is
reinforced the conclusion reached by us that mandamus does not lie in this case.
4. It is not an easy matter then to disregard the views of persons knowledgeable in
the field, to whom cannot be imputed lack of awareness of the need to respect
freedom of thought on the part of students and scholars. Moreover, it could amount to
minimizing the full respect that must be accorded the academic freedom expressly
granted by the Constitution "to institutions of higher learning." It is equally difficult to
yield conformity to the approach taken that colleges and universities should be looked
upon as public utilities devoid of any discretion as to whom to admit or reject.
Education, especially higher education, belongs to a different, and certainly higher,
category.
5. It only remains to be added that the futility that marked the persistence of
petitioner to continue her studies in the Loyola School of Theology is the result solely
of a legal appraisal of the situation before us. The decision is not to be construed as in
any way reflecting on the scholastic standing of petitioner. There was on the part of
respondent due acknowledgment of her intelligence. Nonetheless, for reasons
explained in the letter of Father Lambino, it was deemed best, considering the interest
of the school as well as of the other students and her own welfare, that she continue
her graduate work elsewhere. There was nothing arbitrary in such appraisal of the
circumstances deemed relevant. It could be that on more mature reflection, even
petitioner would realize that her transfer to some other institution would redound to the
benefit of all concerned. At any rate, as indicated earlier, only the legal aspect of the
controversy was touched upon in this decision.
WHEREFORE, the petition is dismissed for lack of merit.
Makalintal, C.J., Barredo, Antonio, Esguerra, Muoz Palma, Aquino, Concepcion,
Jr. and Martin, JJ., concur.
Castro, J., took no part.
G.R. No. L-14078 March 7, 1919
RUBI, ET AL. (manguianes), plaintiffs, vs. THE PROVINCIAL BOARD OF
MINDORO, defendant. check p. 48
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA,
minors, and represented by their parents
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and Natural Resources, and THE
HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch
66, respondents. check p. 12
194
G.R. No. L-23096 April 27, 1972
MARTIN NERY and LEONCIA L. DE LEON, Petitioners, vs. ROSARIO, ALFREDO,
MARIANO, PACIFICO, ONOFRE, TEOFILO, LOLOY and TRINIDAD, all surnamed
LORENZO, Respondents.
G.R. No. L-23376 April 27, 1972
DIONISIO, PERFECTO, MARIA REBECCA, ASUNCION, MAURO, and, LOURDES,
all surnamed LORENZO, Petitioners, vs. MARTIN NERY and LEONCIA L. DE
LEON, Respondents.
FERNANDO, J.:
The point to be resolved in these two petitions for the review of a decision of the
respondent Court of Appeals dated April 30, 1964 is the extent of the rights acquired
by the vendees, the spouses Martin Nery and Leoncia L. de Leon 1 arising from a sale
of a parcel of land, four (4) hectares more or less, situated in Malaking Kahoy,
Paraaque, Rizal. The vendor, Bienvenida de la Isla, was the widow of the deceased
Leoncio Lorenzo and guardian of their children, Dionisio, Perfecto, Maria Rebeeca,
Asuncion, Mauro and Lourdes, 2 who thereafter challenged the validity of such a
transaction. It was their contention that notwithstanding an order authorizing the sale
from the probate court on June 2, 1953, it could be, impugned as they were not
informed of such a move. Moreover, the guardianship proceeding, instituted on
December 7, 1950, was heard without the two elder children, Dionisio and Perfecto
Lorenzo being notified although they were then more than 14 years of age. The heirs
of Silvestra Ferrer, who originally owned one-fourth of the property in question, 3
intervened in such action. In the lower court decision, they were adjudged co-owners
of the aforesaid one-fourth portion of the property, the sale by the widow being
considered null and void insofar as they were concerned. The rights of the Children of
Leoncio Lorenzo and Bienvenida de la Isla to one-half of the three-fourths appertaining
to such spouses were likewise accorded recognition.
The matter was then elevated to the respondent Court of Appeals by the spouses
Martin Nery and Leoncia L. de Leon. Respondent Court in its decision, now subject of
this review, declared valid the deed of sale executed by the mother Bienvenida de la
Isla in favor of the spouses Nery and de Leon as to the whole three-fourths, without
prejudice however to the children demanding from their mother their participation in the
amount paid for the sale of such property. It thus ignored the grave jurisdictional
defects that attended the challenged orders, starting with the two elder children not
being notified of the petition for guardianship, even if they were already above 14, as
pointed out and stressed in their petition for review. There is need then for the exercise
of the corrective power of this Court. The original decision of the lower court has much
more to recommend it. Thereby, the rights of the children are fully respected. With a
restoration in full of what was decided by the lower court, there is a corresponding
modification of the judgment of the Court of Appeals. So we decide.
The antecedents of the case were set forth in the appealed decision thus: "After
hearing the evidence, the lower court handed down decision on June 24, 1961, finding
that in the guardianship proceedings, the court acquired no jurisdiction over the
persons of the minors who were not notified of the petition, at least 2 of them being
over 14 years of age; that as the inventory submitted by the guardian stated that the
minors had no real estate, the court did not acquire jurisdiction over the real property
of the minors and could not have validly authorized its sale, and the total absence of
the requisite notice necessarily rendered the order of sale, ... null and void, and the
defendant, Martin S. Nery, a lawyer, could not be considered a purchaser in good faith
of the one-half portion of the land belonging to the minors; ... that as Silvestra Ferrer,
one of the sisters of Florentino Ferrer, did not sign the deed of sale ... upon her death
in 1952, her 1/4 portion of the land passed to her nearest relatives, the third-party
plaintiffs who are children of her sister, Tomasa Ferrer, whose action had not
prescribed 'because from the death of Silvestra Ferrer in 1952 up to the filing of the
third-party complaint on September 3, 1958, barely six yeaxs had elapsed'; and that
the remaining 3/4 of the land in question was the conjugal property of Leoncio Lorenzo
and his wife, Bienvenida de la Isla, 1/2 of which, upon the demise of Leoncio,
corresponding to Bienvenida and the other half to their children, the herein plaintiffs, in
equal shares." 4
Why respondent Court reached the decision it did on appeal was explained this
way: "It is unquestioned that the property in question formerly belonged to Florentino
Ferrer and his three sisters, Agueda, Tomasa and Silvestra, and brother, Meliton.
When, after the death of Florentino, that is, on December 6, 1943, the document
denominated 'Bilihan Ganap Nang Lupang-Bukid', ... was executed in favor of Leoncio
F. Lorenzo, one of the children of Agueda and married to Bienvenida de la Isla, by said
Agueda, Tomasa and the children of Meliton, already deceased, said Leoncio merely
acquired the participation of said sellers, equivalent to 3/4 undivided part of said land,
and became a co-owner to that extent with Silvestra who did not execute said
document and, therefore,did not sell her 1/4 undivided portion of the said land, which
1/4 undivided portion passed, upon her demise in 1952, to her nearest relatives who
are the third-party plaintiffs Rosario, Alfredo, Mariano, Pacifica, Onofre, Teofilo, Loloy
and Trinidad all surnamed Lorenzo, the children of her deceased sister, Tomasa.
Bienvenida de la Isla, then the wife of said Leoncio F. Lorenzo, knew of this purchase
made by her deceased husband, and she had no right to mortgage the whole land
which, for taxation purposes was declared in her husband's name, without the consent
of aforenamed successors-in-interest of Silvestra Ferrer, much less sell the same
afterwards to the defendant spouses, Martin S. Nery and Leoncia L. de Leon, even if
authorized by the guardianship court, said authority having been granted upon her
misrepresentation, contained in her petition of May 26, 1953, that her minor children,
the plaintiff's herein, were the owners in common of 1/2 portion of the land in question,
the other 1/2 pertaining to her. However, inasmuch as the said minor plaintiffs were
really the owners in common of 1/2 of 3/4 undivided part of the said land, and the other
1/2, to their mother and guardian, the orders of the guardianship court authorizing the
guardian to sell the real property of the minors, and approving the deed of sale
executed in accordance with said authority must be construed as referring to the
correct real property of the said minors." 5
Hence its dispositive portion provided as follows: "[Wherefore], the appealed
judgment is hereby modified by declaring that the deed of sale ..., executed by
Bienvenida de la Isla in favor of the defendants valid only insofar as the undivided 3/4
portion of the land in question is concerned, as to which portion, the defendants are
declared owners, and that the third-party plaintiffs, Rosario, Alfredo, Mariano, Pacifica,
Onofre, Teofilo, Loloy and Trinidad, all surnamed Lorenzo, are declared owners in
common of the remaining undivided 1/4 portion of the said land. In all other respects,
the appealed judgment is hereby affirmed. No Costs." 6
195
 The spouses Martin Nery and Leoncia L. de Leon and the children of the deceased
Leoncio Lorenzo and the vendor, Bienvenida de la Isla, not being satisfied with the
above decision instituted the petitions for review. As noted at the outset, the failure of
respondent Court of Appeals to give due weight to the grave jurisdictional defect that
tainted the guardianship proceeding resulted in its judgment suffering the corrosion of
substantial legal error. The rights of the children of Leoncio Lorenzo as upheld by the
lower court must, to repeat, be maintained. In that sense, the decision of the
respondent Court of Appeals is subject to modification. Insofar however as it affirmed
the lower court decision sustaining the claim of the heirs of Silvestra Ferrer, 7 it is free
from any infirmity.
1. What is indisputable in the light of the controlling legal doctrines is that it was the
lower court and not the respondent Court of Appeals that yielded obeisance to the
applicable procedural rule. It is worded thus: "When a petition for the appointment of a
general guardian is filed, the court shall fix a time and place for hearing the same, and
shall cause reasonable notice thereof to be given to the persons mentioned in the
petition residing in the province, including the minor if above 14 years of age or the
incompetent himself, and may direct other general or special notice thereof to be
given." 8 The late Chief Justice Moran was quite explicit as to its jurisdictional
character. These are his words: "Service of the notice upon the minor if above 14
years of age or upon the incompetent, is jurisdictional. Without such notice, the court
acquires no jurisdiction to appoint a guardian." 9
The case cited by him in support of such view is Yangco v. Court of First Instance,
10 a 1915 decision. As was therein made clear: "There is no need for interpretation or
construction of the word in the case before us. Its meaning is so clear that
interpretation and construction are unnecessary. Our simple duty is to leave untouched
the meaning with which the English language has endowed the word; and that is the
meaning which the ordinary reader would accord to it on reading a sentence in which it
was found. Where language is plain, subtle refinements which tinge words so as to
give them the color of a particular judicial theory are not only unnecessary but
decidedly harmful. That which has caused so much confusion in the law, which has
made it so difficult for the public to understand and know what the law is with respect
to a given matter, is in considerable measure the unwarranted interference by judicial
tribunals with the English language as found in statutes and contracts, cutting out
words here and inserting them there, making them fit personal ideas of what the
legislature ought to have done or what parties should have agreed upon, giving them
meanings which they do not ordinarily have, cutting, trimming, fitting, changing and
coloring until lawyers themselves are unable to advise their clients as to the meaning
of a given statute or contract until it has been submitted to some court for its
'interpretation and construction.' " 11
Respondent Court of Appeals cannot therefore be sustained in its assumption that
the probate court could have authorized the sale in question. The jurisdictional infirmity
was too patent to be overcome. It was the lower court that acted correctly. There is the
more reason for deciding as we do considering that the rights of minors are involved. It
is a distinctive feature of our law, one that is quite commendable, that whenever their
welfare may be affected, its solicitude is made manifest. The rights of young are not to
be ignored. Precisely their stage of immaturity calls for every procedural principle
being observed before their interest in property to which they have a claim could be
adversely affected. It does not matter that their guardian is their mother. As far back as
1811, in Salunga v. Evangelista, 12 Chief Justice Arellano took note that even a
mother could have an "interest opposed to that of her children." 13 That may not have
been the precise situation in this case, but certainly from the facts as found by the
Court of Appeals, the Lorenzo children would have been better protected if they were
notified as is required by law. If there is any occasion then why there should be a strict
insistence on rule having the impress of a jurisdictional requirement, this is it.
Moreover, where minors are involved, the State acts as parens patriae. To it is cast
the duty of protecting the rights of persons or individual who because of age or
incapacity are in an unfavorable position, vis-a-vis other parties. Unable as they are to
take due care of what concerns them, they have the political community to look after
their welfare. This obligation the state must live up to. It cannot be recreant to such a
trust. As was set forth in an opinion of the United States Supreme Court: "This
prerogative of parens patriae is inherent in the supreme power of every State, whether
that power is lodged in a royal person or in the legislature, and has no affinity to those
arbitrary powers which are sometimes exerted by irresponsible monarchs to the great
detriment of the people and the destruction of their liberties. On the contrary, it is a
most beneficent function, and often necessary to be exercised in the interest of
humanity, and for the prevention of injury to those who cannot protect themselves." 14
2. Much less could the decision arrived at both by the lower court and respondent
Court of Appeals as to the heirs of Silvestra Ferrer 15 being entitled to
one-fourth of the property in question be set aside. At no time had the deceased
Leoncio Lorenzo ever denied that he was holding such property in the capacity of
trustee for them. At the time then that the settlement of his estate was pending in the
probate court, his widow, Bienvenida de la Isla, the vendor, could not assert any other
right, except that traceable to her late husband. Respondent Court of Appeals did note
that petitioner Martin S. Nery is a lawyer. As a member of the bar, he could not have
been unaware that his vendor could not sell to him more than she rightfully could
dispose of. It is much too late in the day to depart from the well-settled principle as to a
trustee being incapable of acquiring interest opposed to that of his principal. So it was
announced in Severino v. Severino. 16 That is in conformity with an overmastering
requirement of equity and conscience. He should thus be held to the strictest degree of
acccountability. The law would lay itself open to well-deserved criticism if a principle
other than the above were followed. The Nery spouses ought to be aware that it would
be unthinkable to deny its authoritative force whenever called for.
The spouses Martin Nery and Leoncia L. de Leon would demonstrate its
inapplicability by the two principal errors assigned, namely, that Silvestra Ferrer did sell
her share of the property as far back as 1943 and that even if it were not so, the
deceased Leoncio Lorenzo and thereafter his widow, Bienvenida de la Isla did assert
rights of ownership therein. It is obvious that on the face of such alleged errors that
they are essentially factual. We are thus precluded from inquiring into their veracity as
on such a matter what was decided by respondent Court of Appeals is binding on us.
Moreover, as to the alleged prescription, the issue was resolved satisfactorily by the
lower court in this fashion: "The action of said children of Tomasa Ferrer has not as yet
prescribed because from the death of Silvestra Ferrer in 1952 up to the filing of the
third-party complaint on September 3, 1958, barely six years had elapsed. Moreover,
there is no clear and satisfactory evidence that Leoncio Lorenzo and his successors-
in-interest had been in continuous, adverse, and open possession, and under claim of
ownership, of the one-fourth portion corresponding to Silvestra Ferrer as to acquire
196
same by acquisitive prescription." 17 Consequently, it was appropriate for the Court of
Appeals to affirm the judgment of the lower court insofar as it recognized the rights of
the heir of Silvestra Ferrer to one-fourth of the land sold.
WHEREFORE, premises considered with the modification as above set forth that
Dionisio, Perfecto, Maria Rebecca, Asuncion, Mauro and Lourdes, all surnamed
Lorenzo, children of the deceased Leoncio Lorenzo and Bienvenida de la Isla are
adjudged co-owners to the extent of one-half of the three-fourths of the property in
question, as was decreed by the lower court, the appealed decision of the Court of
Appeals is affirmed. With costs against Martin Nery and Leoncia L. de Leon.
Reyes, J.B.L., Actg. C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo,
Makasiar and Antonio, JJ., concur.
Concepcion, C.J., is on leave.
[G.R. No. 122917. July 12, 1999.]
MARITES BERNARDO, ELVIRA GO DIAMANTE, REBECCA E. DAVID, DAVID P.
PASCUAL, RAQUEL ESTILLER, ALBERT HALLARE, EDMUND M. CORTEZ,
JOSELITO O. AGDON, GEORGE P. LIGUTAN JR., CELSO M. YAZAR, ALEX G.
CORPUZ, RONALD M. DELFIN, ROWENA M. TABAQUERO, CORAZON C. DELOS
REYES, ROBERT G. NOORA, MILAGROS O. LEQUIGAN, ADRIANA F.
TATLONGHARI, IKE CABANDUCOS, COCOY NOBELLO, DORENDA
CANTIMBUHAN, ROBERT MARCELO, LILIBETH Q. MARMOLEJO, JOSE E.
SALES, ISABEL MAMAUAG, VIOLETA G. MONTES, ALBINO TECSON, MELODY
V. GRUELA, BERNADETH D. AGERO, CYNTHIA DE VERA, LANI R. CORTEZ, MA.
ISABEL B. CONCEPTION, DINDO VALERIO, ZENAIDA MATA, ARIEL DEL PILAR,
MARGARET CECILIA CANOZA, THELMA SEBASTIAN, MA. JEANETTE
CERVANTES, JEANNIE RAMIL, ROZAIDA PASCUAL, PINKY BALOLOA,
ELIZABETH VENTURA, GRACE S. PARDO & RICO TIMOSA, Petitioners, v.
NATIONAL LABOR RELATIONS COMMISSION & FAR EAST BANK AND TRUST
COMPANY, Respondents. check p. 187
G.R. No. L-14639 March 25, 1919 check p. 63
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
G.R. No. L-63345 January 30, 1986
EFREN C. MONCUPA, Petitioner, vs. JUAN PONCE ENRILE, FABIAN C. VER,
GALILEO KINTANAR, FERNANDO GOROSPE, AND JOSE CASTRO,
Respondents.
GUTIERREZ, JR., J.:
As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778, 790), this
Court ruled:
A prime specification of al application for a writ of habeas corpus is restraint of liberty.
The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude freedom of action
is sufficient. ...
This latitudinarian scope of the writ of habeas-corpus has, in law, remained
undiminished up to the present. The respondents' contention that the petition has
become moot and academic must necessarily be denied. Efren C. Moncupa may have
been released from his detention cell. The restraints attached to his temporary release,
however, preclude freedom of action and under the Villavicencio v. Lukban rule
warrant this Court's inquiry into the nature of his involuntary restraint and our relieving
him of such restraints as may be illegal.
Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982 at
about 10:50 P.M., at the corner of D. Street and Quezon Avenue, Quezon City.
Moncupa D. Tuazon was brought to MIG-15 Camp Bago Bantay, Quezon City where
he was detained. On April 23, 1982, on the allegation that he was a National
Democratic Front (NDF) staff member, a Presidential Commitment Order (PCO) was
issued against him and eight (8) other persons.
After two separate investigations, conducted first, by Lieutenant Colonel Gerardo
Lantoria, Jr., Chief of Task Force Makabansa Investigation Group and second, by
Investigating Fiscal Amado Costales of Quezon City, it was ascertained that the
petitioner was not a member of any subversive organization. Both investigators
recommended the prosecution of the petitioner only for illegal possession of firearms
and illegal possession of subversive documents under Presidential Decree No. 33.
Consequently, two separate informations were filed against the petitioner, one, for
illegal possession of firearms before the Court of First Instance of Rizal and the other
for violation of P.D. 33 before the City Court of Quezon City. Against the other accused,
however, the cases filed were for violation of P.D. 885 as amended. Significantly, the
petitioner was excluded from the charge under the Revised Anti-Subversion Law.
During the pendency of this petition, it is significant that his arraignment and further
proceedings have not been pursued. And yet, the petitioner's motions for bail were
denied by the lower court.
Hence, the petitioner filed the instant petition.
The respondents, in their return of the writ justified the validity of petitioner's detention
on the ground that the privilege of the writ had been suspended as to the petitioner.
However, on August 30, 1983, the respondents filed a motion to dismiss stating that on
May 11, 1983, the petitioner was temporarily released from detention on orders of the
197
Minister temporary of National Defense with the approval of the President. The
respondents stated. "Since the petitioner is free and no longer under the custody of the
respondents, the present petition for habeas corpus may be deemed moot and
academic as in similar cases.
The issue to be resolved is whether or not the instant petition has become moot and
academic in view of the petitioner's temporary release.
It is to be noted that attached to the petitioner's temporary release are restrictions
imposed on him. These are:
1) His freedom of movement is curtailed by the condition that petitioner gets the
approval of respondents for any travel outside Metro Manila.
2) His liberty of abode is restricted because prior approval of respondents is also
required in case petitioner wants to change his place of residence.
3) His freedom of speech is muffled by the prohibition that he should not "participate in
any interview conducted by any local or foreign mass media representatives nor give
any press release or information that is inimical to the interest of national security."
4) He is required to report regularly to respondents or their representatives.
The petitioner argues that although admittedly his temporary release is an
improvement upon his actual detention, the restrictions imposed by the respondents
constitute an involuntary and illegal restraint on his freedom.
The petitioner stresses that his temporary release did not render the instant petitioner
moot and academic but that "it merely shifted the inquiry from the legality of his actual
detention to the legality of the conditions imposed by the respondents."
We agree with the petitioner.
The reservation of the military in the form of restrictions attached to the temporary
release of the petitioner constitute restraints on the liberty of Mr. Moncupa. Such
restrictions limit the freedom of movement of the petitioner. It is not physical restraint
alone which is inquired into by the writ of habeas corpus.
In Villavicencio v. Lukban, the women who had been illegally seized and transported
against their will to Davao were no longer under any official restraint. Unlike petitioner
Moncupa, they were free to change their domicile without asking for official permission.
Indeed, some of them managed to return to Manila. Yet, the Court condemned the
involuntary restraints caused by the official action, fined the Mayor of Manila and
expressed the hope that its "decision may serve to bulwark the fortifications of an
orderly government of laws and to protect individual liberty from Megal encroachment."
In the light of the above ruling, the present petition for habeas corpus has not become
moot and academic. Other precedents for such a conclusion are not wanting.
The decision in Caunca v. Salazar (82 Phil. 851) states:
An employment agency, regardless of the amount it may advance to a prospective
employee or maid, has absolutely no power to curtail her freedom of movement. The
fact that no physical force has been exerted to keep her in the house of the respondent
does not make less real the deprivation of her personal freedom of movement,
freedom to transfer from one place to another, from to choose one's residence.
Freedom may be lost due to external moral compulsion, to founded or groundless fear,
to erroneous belief in the existence of the will. If the actual effect of such psychological
spell is to place a person at the mercy of another, the victim is entitled to the protection
of courts of justice as much as the individual who is illigally deprived of liberty by
deprived or physical coercion.
In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled:
Although the release in the custody of the Deputy Minister did not signify that
petitioners could once again enjoy their full freedom, the application could have been
dismissed, as it could be withdrawn by the parties themselves. That is a purely
voluntary act. When the hearing was held on September 7, 1978, it turned out that
counsel for petitioner Bonifacio V. Tupaz could have academic in a hasty manner when
he set forth the above allegations in his manifestation of August 30, 1978, for Attorney
Jose C. Espinas, who appeared for petitioners, while conceding that there was such a
release from confinement, also alleged that it was conditioned on their restricting their
activities as labor union leaders to the premises of the Trade Unions of the Philippines
and ABSOLUTE Services, presumably in Macaraig as well as the Ministry of labor. As
the voting was to take place in the business firm in Bataan, the acts set would nullify
whatever efforts they could have exerted. To that extent, and with the prohibition
against their going to Bataan, the restraint on liberty was undeniable. If so, the moot
and academic character of the petition was far from clear.
More recently, we had occasion to rule squarely on whether or not a temporary release
from detention renders the petition for writ of habeas corpus moot and academic. As in
this case of Moncupa, the petitioners in Toyoto, et al v. Hon. Fidel Ramos, et al, G.R.
No. 69270, October 15, 1985, were temporarily released from detention. The
respondents filed a motion to dismiss the petition for habeas corpus on the ground that
the petitioners had been temporarily released and their case had, therefore, become
moot and academic. The petitioners insisted, however, that their case may be
considered moot and academic only "if their release would be permanent." In ruling for
the petitioners, we said:
Ordinarily, a petition for habeas corpus becomes moot and academic when the
restraint on the liberty of the petitioners is lifted either temporarily or permanently. We
have so held in a number of cases. But the instant case presents a different situation.
The question to be resolved is whether the State can reserve the power to re-arrest a
person for an offense after a court of competent jurisdiction has absolved him of the
offense. An affirmative answer is the one suggested by the respondents because the
release of the petitioners being merely 'temporary' it follows that they can be re-
arrested at anytime despite their acquittal by a court of competent jurisdiction. We hold
that such a reservation is repugnant to the government of laws and not of men
principle. Under this principle the moment a person is acquitted on a criminal charge
he can no longer be detained or re-arrested for the same offense. This concept is so
basic and elementary that it needs no elaboration.
In effect the principle is clear. A release that renders a petition for a writ of habeas
corpus moot and academic must be one which is free from involuntary restraints.
Where a person continues to be unlawfully denied one or more of his constitutional
freedoms, where there is present a denial of due process, where the restraints are not
merely involuntary but appear to be unnecessary, and where a deprivation of freedom
originally valid has, in the light of subsequent developments, become arbitrary, the
person concerned or those applying in his behalf may still avail themselves of the
privilege of the writ.
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The respondents have failed to show why the writ may not issue and why the restraints
on the petitioner's freedom of movement should not be lifted.
WHEREFORE, the PETITION is GRANTED. The conditions attached to the temporary
release of the petitioner are declared null and void. The temporary release of the
petitioner is declared ABSOLUTE. No costs,
SO ORDERED.
Teehankee, Concepcion, Jr., Abad Santos, Melencio-Herrera, Escolin De la Fuente,
Cuevas, Alampay and Patajo, JJ., concur.
Aquino, C.J., took no part.
Plana, J., I reserve my vote.
G.R. No. L-33964 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO
LANSANG RODOLFO DEL ROSARIO, and BAYANI ALCALA, Petitioners, vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary,
Respondent.
G.R. No. L-33965 December 11, 1971
ROGELIO V. ARIENDA, Petitioner, vs.
SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY,
Respondents.
G.R. No. L-33973 December 11, 1971
LUZVIMINDA DAVID, Petitioner, vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N.
C. CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON.
JUAN PONCE ENRILE in his capacity as Secretary, Department of National defense,
Respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E.
PRUDENTE FELICIDAD G. PRUDENTE, Petitioners, vs.
GENERAL MANUEL YAN, GEN. EDU GARCIA, Respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF
GERARDO TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF
DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as
Chairman, Committee on Legal Assistance, Philippine Bar Association, Petitioner, vs.
BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY,
Respondent.
G.R. No. L-34013 December 11, 1971
REYNALDO RIMANDO, Petitioner, vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary,
Respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF
SGT. FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE
CASTRO. CARLOS C. RABAGO, in his capacity as President of the Conference
Delegates Association of the Philippines (CONDA), Petitioner, vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, Respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA,
JR. ANTOLIN ORETA, JR., Petitioner, vs.
GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, Respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, Petitioner, vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et al.,
Respondents.
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the
Philippines was holding a public meeting at Plaza Miranda, Manila, for the presentation
of its candidates in the general elections scheduled for November 8, 1971, two (2)
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hand grenades were thrown, one after the other, at the platform where said candidates
and other persons were. As a consequence, eight (8) persons were killed and many
more injured, including practically all of the aforementioned candidates, some of whom
sustained extensive, as well as serious, injuries which could have been fatal had it not
been for the timely medical assistance given to them.
On August 23, soon after noontime, the President of the Philippines announced the
issuance of Proclamation No. 889, dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely
established that lawless elements in the country, which are moved by common or
similar ideological conviction, design and goal and enjoying the active moral and
material support of a foreign power and being guided and directed by a well trained,
determined and ruthless group of men and taking advantage of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in
fact joined and banded their forces together for the avowed purpose of actually
staging, undertaking and waging an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted
government, and supplant our existing political social, economic and legal order with
an entirely new one whose form of government, whose system of laws, whose
conception of God and religion, whose notion of individual rights and family relations,
and whose political, social and economic precepts are based on the Marxist-Leninist-
Maoist teachings and beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations
that are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in infiltrating almost
every segment of our society in their ceaseless determination to erode and weaken the
political, social, economic and moral foundations of our existing government and to
influence many peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly constituted
authorities, against the members of our law enforcement agencies, and worst of all,
against the peaceful members of our society;
WHEREAS, these lawless elements have created a state of lawlessness and
disorder affecting public safety and the security of the State, the latest manifestation of
which has been the dastardly attack on the Liberal Party rally in Manila on August 21,
1971, which has resulted in the death and serious injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be taken in
order to maintain peace and order, secure the safety of the people and preserve the
authority of the State;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of habeas corpus, for the
persons presently detained, as well as others who may be hereafter similarly detained
for the crimes of insurrection or rebellion, and all other crimes and offenses committed
by them in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith.
Presently, petitions for writ of habeas corpus were filed, in the above-entitled
cases, by the following persons, who, having been arrested without a warrant therefor
and then detained, upon the authority of said proclamation, assail its validity, as well as
that of their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the
petitioners in Case No. L-33964 - filed on August 24, 1971 - who, on August 22, 1971,
between 8 a.m. and 6 p.m., were "invited" by agents of the Philippine Constabulary -
which is under the command of respondent Brig. Gen. Eduardo M. Garcia - to go and
did go to the headquarters of the Philippine Constabulary, at Camp Crame, Quezon
City, for interrogation, and thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 - filed, also, on
August 24, 1971 - who was picked up in his residence, at No. 55 Road, 3, Urduja
Village, Quezon City, by members of the Metrocom and then detained;
3. Soon after the filing of the petition in Case No. L-33965 - or on August 28, 1971 -
the same was amended to include VICENTE ILAO and JUAN CARANDANG, as
petitioners therein, although, apart from stating that these additional petitioners are
temporarily residing with the original petitioner, Rogelio V. Arienda, the amended
petition alleged nothing whatsoever as regards the circumstances under which said
Vicente Ilao and Juan Carandang are said to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 - filed on August 25, 1971
- who was similarly arrested in his residence, at No. 131-B Kamias Road, Quezon City,
and detained by the Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 - on August
27, 1971 - upon the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on
August 22, 1971, at about 8 p.m., been apprehended by Constabulary agents in his
house, at St. Ignatius Village, Quezon City, and then detained at the Camp Crame
stockade, Quezon City;
6. ANGELO DE LOS REYES, who was allowed - on August 30, 1971 - to intervene
as one of the petitioners in Cases Nos. L-33964, L-33965 and L-33973, he having
been arrested by members of the Constabulary on August 22, 1971, between 6:30 and
7:30 p.m., in his residence, at 86 Don Manuel Street, Sta. Mesa Heights, Quezon City,
and brought to Camp Crame, Quezon City, where he is detained and restrained of
liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as one of the
petitioners in said three (3) cases, upon the ground that, on August 23, 1971, at about
8 a.m., he was, likewise, apprehended at Sta. Rosa, Laguna, by members of the
Philippine Constabulary and brought, first to the Constabulary headquarters at
Canlubang, Laguna, and, then, to Camp Crame, Quezon City, where he is detained
and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners
in the same three (3) cases, he having been arrested in his residence, at 318
Lakandula St., Angeles City, on August 22, 1971, between 6 and 7 p.m., and taken to
the PC offices at Sto. Domingo, Angeles City, then to Camp Olivas, San Fernando,
Pampanga, and eventually to Camp Crame, Quezon City, where he is restrained and
deprived of liberty;
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 9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college
students of St. Louis University, Baguio City, on whose behalf, Domingo E. de Lara - in
his capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association -
filed on September 3, 1971, the petition in Case No. L-34004, upon the ground that
said Gerardo Tomas had, on August 23, 1971, at about 6 a.m., been arrested by
Constabulary agents, while on his way to school in the City of Baguio, then brought to
the Constabulary premises therein at Camp Holmes, and, thereafter, taken, on August
24, 1971, to Camp Olivas, Pampanga, and thence, on August 25, 1971, to the
Constabulary headquarters at Camp Crame, Quezon City, where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 - filed on September 7,
1971 - a 19-year old student of the U.P. College in Baguio city - who, while allegedly
on his way home, at Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was
joined by three (3) men who brought him to the Burnham Park, thence, to Camp Olivas
at San Fernando, Pampanga, and, thereafter, to Camp Crame, Quezon City, where he
is detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE
CASTRO, on whose behalf Carlos C. Rabago - as President of the Conference
Delegates Association of the Philippines (CONDA) - filed the petition in Case No.
L-34039 - on September 14, 1971 - against Gen. Eduardo M. Garcia, alleging that, on
August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested, while at Liamzon
Subdivision, Rosario, Pasig, Rizal, by agents of the Constabulary, and taken to the PC
headquarters at Camp Crame, where, later, that same afternoon, her husband was
brought, also, by PC agents and both are detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 - on October
26, 1971 - against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero
Olivas, Chief of the Central Intelligence Service (CIS), Philippine Constabulary,
alleging that, upon invitation from said CIS, he went, on October 20, 1971, to Camp
Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief of Staff of the Armed Forces of
the Philippines, who referred petitioner to Col. Laroya of the CIS; that the latter, in turn,
referred him to CIS Investigator Atty. Berlin Castillo and another CIS against, whose
name is unknown to the petitioner; and that, after being interrogated by the two (2),
petitioner was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 - filed on November 10, 1971 -
who was apprehended, by agents of the Constabulary, in the evening of November 8,
1941, in Quezon City, and then detained at Camp Crame, in the same City.
Upon the filing of the aforementioned cases, the respondents were forthwith
required to answer the petitions therein, which they did. The return and answer in
L-33964 - which was, mutatis mutandis, reproduced substantially or by reference in the
other cases, except L-34265 - alleges, inter alia, that the petitioners had been
apprehended and detained "on reasonable belief" that they had "participated in the
crime of insurrection or rebellion;" that "their continued detention is justified due to the
suspension of the privilege of the writ of habeas corpus pursuant to Proclamation No.
889 of the President of the Philippines;" that there is "a state of insurrection or
rebellion" in this country, and that "public safety and the security of the State required
the suspension of the privilege of the writ of habeas corpus," as "declared by the
President of the Philippines in Proclamation No. 889; that in making said declaration,
the "President of the Philippines acted on relevant facts gathered thru the coordinated
efforts of the various intelligence agents of our government but (of) which the Chief
Executive could not at the moment give a full account and disclosure without risking
revelation of highly classified state secrets vital to its safely and security"; that the
determination thus made by the President is "final and conclusive upon the court and
upon all other persons" and "partake(s) of the nature of political question(s) which
cannot be the subject of judicial inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87, and
Montenegro v. Castaeda, 91 Phil. 882; that petitioners "are under detention pending
investigation and evaluation of culpabilities on the reasonable belief" that they "have
committed, and are still committing, individually or in conspiracy with others, engaged
in armed struggle, insurgency and other subversive activities for the overthrow of the
Government; that petitioners cannot raise, in these proceedings for habeas corpus,
"the question of their guilt or innocence"; that the "Chief of Constabulary had
petitioners taken into custody on the basis of the existence of evidence sufficient to
afford a reasonable ground to believe that petitioners come within the coverage of
persons to whom the privilege of the writ of habeas corpus has been suspended"; that
the "continuing detention of the petitioners as an urgent bona fide precautionary and
preventive measure demanded by the necessities of public safety, public welfare and
public interest"; that the President of the Philippines has "undertaken concrete and
abundant steps to insure that the constitutional rights and privileges of the petitioners
as well as of the other persons in current confinement pursuant to Proclamation 889
remain unimpaired and unhampered"; and that "opportunities or occasions for abuses
by peace officers in the implementation of the proclamation have been greatly
minimized, if not completely curtailed, by various safeguards contained in directives
issued by proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National Defense, dated August 21,
1971, directing, inter alia, in connection with the arrest or detention of suspects
pursuant to Proclamation No. 889, that, except when caught in flagrante delicto, no
arrest shall be made without warrant authorized in writing by the Secretary of National
Defense; that such authority shall not be granted unless, "on the basis of records and
other evidences," it appears satisfactorily, in accordance with Rule 113, section 6(b), of
the Rules of Court, that the person to be arrested is probably guilty of the acts
mentioned in the proclamation; that, if such person will be charged with a crime subject
to an afflictive penalty under the Anti-Subversion Act, the authorization for his arrest
shall not be issued unless supported by signed intelligence reports citing at least one
reliable witness to the same overt act; that no unnecessary or unreasonable force shall
be used in effecting arrests; and that arrested persons shall not be subject to greater
restraint than is necessary for their detention;
2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30,
1971, to all units of his command, stating that the privilege of the writ is suspended for
no other persons than those specified in the proclamation; that the same does not
involve material law; that precautionary measures should be taken to forestall violence
that may be precipitated by improper behavior of military personnel; that authority to
cause arrest under the proclamation will be exercised only by the Metrocom, CMA,
CIS, and "officers occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass arrests; that arrested
persons shall not be harmed and shall be accorded fair and humane treatment; and
201
that members of the detainee's immediate family shall be allowed to visit him twice a authorities, against the members of our law enforcement agencies, and worst of all,
week; against the peaceful members of our society;
3. A memorandum of the Department of National Defense, dated September 2, WHEREAS, these lawless elements, by their acts of rebellion and insurrection,
1971, directing the Chief of the Constabulary to establish appropriate Complaints and have created a state of lawlessness and disorder affecting public safety and security of
Action Bodies/Groups to prevent and/or check any abuses in connection with the the State, the latest manifestation of which has been the dastardly attack on the
suspension of the privilege of the writ; and Liberal Party rally in Manila on August 21, 1971, which has resulted in the death and
4. Executive Order No. 333, dated August 26, 1971, creating a Presidential serious injury of scores of persons;
Administrative Assistance Committee to hear complaints regarding abuses committed WHEREAS, public safety requires that immediate and effective action be taken in
in connection with the implementation of Proclamation No. 889. order to maintain peace and order, secure the safety of the people and preserve the
Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and authority of the State;
Juan Carandang had been released from custody on August 31, 1971, "after it had NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
been found that the evidence against them was insufficient." virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
In L-34265, the "Answer and Return" filed by respondents therein traversed some Constitution, do hereby suspend the privilege of the writ of habeas corpus for the
allegations of fact and conclusions of law made in the petition therein and averred that persons presently detained, as well as all others who may be hereafter similarly
Antolin Oreta, Jr., the petitioner therein, had been and is detained "on the basis of a detained for the crimes of insurrection or rebellion [,] and [all] other [crimes and
reasonable ground to believe that he has committed overt acts in furtherance of offenses] overt acts committed by them in furtherance [or on the occasion] thereof[,].
rebellion or insurrection against the government" and, accordingly, "comes within the [or incident thereto, or in connection therewith.] 1
class of persons as to whom the privilege of the writ of habeas corpus has been On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were
suspended by Proclamation No. 889, as amended," the validity of which is not jointly heard and then the parties therein were allowed to file memoranda, which were
contested by him. submitted from September 3 to September 9, 1971.
On August 30, 1971, the President issued Proclamation No. 889-A, amending Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further
Proclamation No. 889, so as to read as follows: amended by Proclamation No. 889-B, lifting the suspension of the privilege of the writ
WHEREAS, on the basis of carefully evaluated information, it is definitely of habeas corpus in the following provinces, sub-provinces and cities of the Philippine,
established that lawless elements in the country, which are moved by common or namely:
similar ideological conviction, design and goal and enjoying the active moral and A. PROVINCES:
material support of a foreign power and being guided and directed by a well-trained, 1. Batanes 15. Negros Occ.
determined and ruthless group of men and taking advantage of our constitutional
2. Ilocos Norte 16. Negros Or.
liberties to promote and attain their ends, have entered into a conspiracy and have in
3. Ilocos Sur 17. Cebu
fact joined and banded their forces together for the avowed purpose of [actually]
staging, undertaking, [and] wagging and are actually engaged in an armed insurrection 4. Abra 18. Bohol
and rebellion in order to forcibly seize political power in this country, overthrow the duly 5. Abra 19. Capiz
constituted government, and supplant our existing political, social, economic and legal 6. Pangasinan 20. Aklan
order with an entirely new one whose form of government, whose system of laws, 7. Batangas 21. Antique
whose conception of God and religion, whose notion of individual rights and family 8. Catanduanes 22. Iloilo
relations, and whose political, social and economic precepts are based on the Marxist- 9. Masbate 23. Leyte
Leninist-Maoist teaching and beliefs; 10. Romblon 24. Leyte del Sur
WHEREAS, these lawless elements, acting in concert through front organizations 11. Marinduque 25. Northern Samar
that are seemingly innocent and harmless, have continuously and systematically 12. Or. Mindoro 26. Eastern Samar
strengthened and broadened their memberships through sustained and careful 13. Occ. Mindoro 27. Western Samar
recruiting and enlistment of new adherents from among our peasantly, laborers, 14. Palawan.
professionals, intellectuals, students, and mass media personnel, and through such B. SUB-PROVINCES:
sustained and careful recruitment and enlistment have succeeded in infiltrating almost 1. Guimaras 3. Siquior
every segment of our society in their ceaseless determination to erode and weaken the
2. Biliran
political, social, economic and moral foundations of our existing government and
C. CITIES:
influence many peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly constituted 1. Laog 10. Bacolod
2. Dagupan 11. Bago
202
 3. San Carlos 12. Canlaon A. PROVINCE:
4. Batangas 13. La Carlota 1. Bataan 10. North Cotabato
5. Lipa 14. Bais 2. Benguet 11. Nueva Ecija
6. Puerto Princesa 15. Dumaguete 3. Bulacan 13. Pampanga
7. San Carlos (Negros 16. Iloilo 4. Camarines Sur 14. Quezon
Occ.) 17. Roxas 5. Ifugao 15. Rizal
8. Cadiz 18. Tagbilaran 6. Isabela 16. South Cotabato
9. Silay 19. Lapu-lapu 7. Laguna 17. Tarlac
8. Lanao del Norte 18. Zambales
20. Cebu 24. Tacloban 9. Lanao del Norte
21. Mandaue 25. Ormoc
B. SUB-PROVINCES:
22. Danao 26. Calbayog
1. Aurora 2. Quirino
23. Toledo
C. CITIES:
On September 25, 1971, the President issued Proclamation No. 889-C, restoring
1. Angeles 10. Manila
the privilege of the writ in the following provinces and cities:
2. Baguio 11. Marawi
A. PROVINCES: 3. Cabanatuan 12. Naga
1. Surigao del Norte 8. Agusan del Sur 4. Caloocan 13. Olongapo
2. Surigao del Sur 9. Misamis Or. 5. Cotabato 14. Palayan
3. Davao del Norte 10. Misamis Occ. 6. General Santos 15. Pasay
4. Davao del Sur 11. Zamboanga del Norte 7. Iligan 16. Quezon
5. Davao Oriental 12. Basilan 8 Iriga 17. San Jose
6. Bukidnon 13. Pagadian 9 Lucena 18. San Pablo
7. Agusan del Norte The first major question that the Court had to consider was whether it would
B. CITIES: adhere to the view taken in Barcelon v. Baker, 2and reiterated in Montenegro v.
1. Surigao 8. Tangub Castaeda, 3pursuant to which, "the authority to decide whether the exigency has
2. Davao 9. Dapitan arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs to
3. Butuan 10. Dipolog the President and his 'decision is final and conclusive' upon the courts and upon all
4. Cagayan 11. Zamboanga other persons." Indeed, had said question been decided in the affirmative the main
issue in all of these cases, except
5. Gingoong 12. Basilan
6. Ozamiz 13. Pagadian. L-34339, would have been settled, and, since the other issues were relatively of
7. Oroquieta minor importance, said cases could have been readily disposed of. Upon mature
deliberation, a majority of the Members of the Court had, however, reached, although
On October 4, 1971, the suspension of the privilege was further lifted by tentatively, a consensus to the contrary, and decided that the Court had authority to
Proclamation No. 889-D, in the following places: and should inquire into the existence of the factual bases required by the Constitution
A. PROVINCES: for the suspension of the privilege of the writ; but before proceeding to do so, the Court
1. Cagayan 5. Camarines deemed it necessary to hear the parties on the nature and extent of the inquiry to be
undertaken, none of them having previously expressed their views thereof.
2. Cavite 6. Albay
Accordingly, on October 5, 1971, the Court issued, in L-33964, L-33965, L-33973 and
3. Mountain Province 7. Sorsogon
L-33982, a resolution stating in part that -
4. Kalinga-Apayao
B. CITIES: ... a majority of the Court having tentatively arrived at a consensus that it may
inquire in order to satisfy itself of the existence of the factual bases for the issuance of
1. Cavite City 3. Trece Martires
Presidential Proclamations Nos. 889 and 889-A (suspending the privilege of the writ of
2. Tagaytay 4. Legaspi
habeas corpus for all persons detained or to be detained for the crimes of rebellion or
As a consequences, the privilege of the writ of habeas corpus is still suspended in insurrection throughout the Philippines, which area has lately been reduced to some
the following eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, eighteen provinces, two subprovinces and eighteen cities with the partial lifting of the
to wit: suspension of the privilege effected by Presidential Proclamations Nos. 889-B, 889-C
203
and 889-D) and thus determine the constitutional sufficiency of such bases in the light
of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par. 2, of the
Philippine Constitution; and considering that the members of the Court are not agreed
on the precise scope and nature of the inquiry to be made in the premises, even as all
of them are agreed that the Presidential findings are entitled to great respect, the Court
RESOLVED that these cases be set for rehearing on October 8, 1971 at 9:30 A.M.
xxx xxx xxx
On October 8, 1971, said four cases were, therefore, heard, once again, but, this
time jointly with cases Nos. L-34004, L-34013, and L-34039, and the parties were then
granted a period to file memoranda, in amplification of their respective oral arguments,
which memoranda were submitted from October 12 to October 21, 1971.
Respondents having expressed, during the oral arguments, on September 1 and
October 8, 1971, their willingness to impart to the Court classified information relevant
to these cases, subject to appropriate security measures, the Court met at closed
doors, on October 28 and 29, 1971, and, in the presence of three (3) attorneys for the
petitioners, chosen by the latter, namely, Senator Jose W. Diokno, Senator Salvador H.
Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General and two (2)
members of his staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed
Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo
Tanabe, Col. Tagumpay Nanadiego, Judge Advocate General, JAGS (GSC), and other
ranking officers of said Armed Forces, on said classified information, most of which
was contained in reports and other documents already attached to the records. During
the proceedings, the members of the Court, and, occassionally, counsel for the
petitioners, propounded pertinent questions to said officers of the Armed Forces. Both
parties were then granted a period of time within which to submit their respective
observations, which were filed on November 3, 1971, and complemented by some
documents attached to the records on November 6, 1971, and a summary, submitted
on November 15, 1971, of the aforesaid classified information.
In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed
and the parties therein were heard in oral argument on November 4, and 16, 1971,
respectively.
On November 15, 1971, the Solicitor General filed manifestations - motions stating
that on November 13, 1971, the following petitioners were:
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the criminal complaint filed
therefor, with a violation of Republic Act No. 1700 (Anti-Subversion Act), in the City
Fiscal's Office of Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the criminal complaint filed
therefor, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in
the Court of First Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889, as amended, and
praying that the petitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013
and L-34039 be dismissed, without prejudice to the resolution of the remaining cases.
Copy of the criminal complaint filed, as above stated, with the Court of First Instance of
Rizal and docketed therein as Criminal Case No. Q-1623 of said court - which was
appended to said manifestations-motions of the respondent as Annex 2 thereof -
shows that Gary Olivar, the petitioner in L-34339, is one of the defendants in said
case.
Required to comment on said manifestations-motions, Luzvimindo David, petitioner
in L-33973, in his comment dated November 23, 1971, urged the Court to rule on the
merits of the petitions in all of these cases, particularly on the constitutionality of
Presidential Proclamation No. 889, as amended, upon the ground that he is still
detained and that the main issue is one of public interest involving as it does the civil
liberties of the people. Angelo de los Reyes, one of the petitioners in L-33964, L-33965
and L-33973, Nemesio E. Prudente and Gerardo Tomas, for whose respective benefit
the petitions in L-33982 and L-34004 have been filed, maintained that the issue in
these cases is not moot, not even for the detainees who have been released, for, as
long as the privilege of the writ remains suspended, they are in danger of being
arrested and detained again without just cause or valid reason. In his reply, dated and
filed on November 29, 1971, the Solicitor General insisted that the release of the
above-named petitioners rendered their respective petitions moot and academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity
of the proclamation suspending the privilege of the writ of habeas corpus. In this
connection, it should be noted that, as originally formulated, Proclamation No. 889 was
contested upon the ground that it did not comply with the pertinent constitutional
provisions, namely, paragraph (14) of section 1, Article III of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be suspended except in cases
of invasion, insurrection, or rebellion, when the public safety requires it, in any way of
which events the same may be suspended wherever during such period the necessity
for such suspension shall exist.
and paragraph (2), section 10, Article VII of the same instrument, which provides
that:
The President shall be commander-in-chief of all armed forces of the Philippines,
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion,
insurrection, or rebellion, or imminent danger thereof when the public safety requires it,
204
he may suspend the privileges of the writ of habeas corpus, or place the Philippines or
any part thereof under martial law.
Regardless of whether or not the President may suspend the privilege of the writ of
habeas corpus in case of "imminent danger" of invasion, insurrection or rebellion -
which is one of the grounds stated in said paragraph (2), section 10 of Art. VII of the
Constitution, but not mentioned in paragraph (14), section 1 of its Bill of Rights -
petitioners maintained that Proclamation No. 889 did not declare the existence of
actual "invasion insurrection or rebellion or imminent danger thereof," and that,
consequently, said Proclamation was invalid. This contention was predicated upon the
fact that, although the first "whereas" in Proclamation No. 889 stated that "lawless
elements" had "entered into a conspiracy and have in fact joined and banded their
forces together for the avowed purpose of actually staging, undertaking and waging an
armed insurrection and rebellion," the actuality so alleged refers to the existence, not
of an uprising that constitutes the essence of a rebellion or insurrection, but of the
conspiracy and the intent to rise in arms.
Whatever may be the merit of this claim, the same has been rendered moot and
academic by Proclamation No. 889-A, issued nine (9) days after the promulgation of
the original proclamation, or on August 30, 1971. Indeed, said Proclamation No. 889-A
amended, inter alia, the first "whereas" of the original proclamation by postulating the
said lawless elements "have entered into a conspiracy and have in fact joined and
banded their forces together for the avowed purpose of staging, undertaking, waging
and are actually engaged in an armed insurrection and rebellion in order to forcibly
seize political power in this country, overthrow the duly constituted government, and
supplant our existing political, social, economic and legal order with an entirely new
one ...." Moreover, the third "whereas" in the original proclamation was, likewise,
amended by alleging therein that said lawless elements, "by their acts of rebellion and
insurrection," have created a state of lawlessness and disorder affecting public safety
and the security of the State. In other words, apart from adverting to the existence of
actual conspiracy and of the intent to rise in arms to overthrow the government,
Proclamation No. 889-A asserts that the lawless elements "are actually engaged in an
armed insurrection and rebellion" to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor of the original
proclamation and particularly, the circumstances under which it had been issued,
clearly suggest the intent to aver that there was and is, actually, a state of rebellion in
the Philippines, although the language of said proclamation was hardly a felicitous
one, it having in effect, stressed the actuality of the intent to rise in arms, rather than of
the factual existence of the rebellion itself. The pleadings, the oral arguments and the
memoranda of respondents herein have consistently and abundantly emphasized - to
justify the suspension of the privilege of the writ of habeas corpus - the acts of violence
and subversion committed prior to August 21, 1971, by the lawless elements above
referred to, and the conditions obtaining at the time of the issuance of the original
proclamation. In short, We hold that Proclamation No. 889-A has superseded the
original proclamation and that the flaws attributed thereto are purely formal in nature.
II
Let us now consider the substantive validity of the proclamation, as amended.
Pursuant to the above-quoted provisions of the Constitution, two (2) conditions must
concur for the valid exercise of the authority to suspend the privilege to the writ, to wit:
(a) there must be "invasion, insurrection, or rebellion" or - pursuant to paragraph (2),
section 10 of Art. VII of the Constitution - "imminent danger thereof," and (b) "public
safety" must require the suspension of the privilege. The Presidential Proclamation
under consideration declares that there has been and there is actually a state of
rebellion and
that 4"public safety requires that immediate and effective action be taken in order
to maintain peace and order, secure the safety of the people and preserve the
authority of the State."
Are these findings conclusive upon the Court? Respondents maintain that they are,
upon the authority of Barcelon v. Baker 5and Montenegro v. Castaeda. 6Upon the
other hand, petitioners press the negative view and urge a reexamination of the
position taken in said two (2) cases, as well as a reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors,
namely: (a) it relied heavily upon Martin v. Mott 7involving the U.S. President's power
to call out the militia, which - he being the commander-in-chief of all the armed forces -
may be exercised to suppress or prevent any lawless violence, even without invasion,
insurrection or rebellion, or imminent danger thereof, and is, accordingly, much
broader than his authority to suspend the privilege of the writ of habeas corpus,
jeopardizing as the latter does individual liberty; and (b) the privilege had been
suspended by the American Governor-General, whose act, as representative of the
Sovereign, affecting the freedom of its subjects, can hardly be equated with that of the
President of the Philippines dealing with the freedom of the Filipino people, in whom
sovereignty resides, and from whom all government authority emanates. The pertinent
ruling in the Montenegro case was based mainly upon the Barcelon case, and hence,
cannot have more weight than the same. Moreover, in the Barcelon case, the Court
held that it could go into the question: "Did the Governor-General" - acting under the
authority vested in him by the Congress of the United States, to suspend the privilege
of the writ of habeas corpus under certain conditions - "act in conformance with such
authority?" In other words, it did determine whether or not the Chief Executive had
acted in accordance with law. Similarly, in the Montenegro case, the Court held that
petitioner therein had "failed to overcome the presumption of correctness which the
judiciary accords to acts of the Executive ...." In short, the Court considered the
question whether or not there really was are rebellion, as stated in the proclamation
therein contested.
Incidentally, even the American jurisprudence is neither explicit nor clear on the
point under consideration. Although some cases 8purport to deny the judicial power to
"review" the findings made in the proclamations assailed in said cases, the tenor of the
opinions therein given, considered as a whole, strongly suggests the court's conviction
that the conditions essential for the validity of said proclamations or orders were, in
fact, present therein, just as the opposite view taken in other cases 9had a backdrop
permeated or characterized by the belief that said conditions were absent. Hence, the
dictum of Chief Justice Taney to the effect that "(e)very case must depend on its own
circumstances." 10One of the important, if not dominant, factors, in connection
therewith, was intimated in Sterling v. Constantin, 11in which the Supreme Court of the
United States, speaking through Chief Justice Hughes, declared that:
.... When there is a substantial showing that the exertion of state power has
overridden private rights secured by that Constitution, the subject is necessarily one
205
for judicial inquiry in an appropriate proceeding directed against the individuals
charged with the transgression. To such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of the Court" had
"tentatively arrived at a consensus that it may inquire in order to satisfy itself of the
existence of the factual bases for the issuance of Presidential Proclamations Nos. 889
and 889-A ... and thus determine the constitutional sufficiency of such bases in the
light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of
the Philippine Constitution...." Upon further deliberation, the members of the Court are
now unanimous in the conviction that it has the authority to inquire into the existence of
said factual bases in order to determine the constitutional sufficiency thereof.
Indeed, the grant of power to suspend the privilege is neither absolute nor
unqualified. The authority conferred by the Constitution, both under the Bill of Rights
and under the Executive Department, is limited and conditional. The precept in the Bill
of Rights establishes a general rule, as well as an exception thereto. What is more, it
postulates the former in the negative, evidently to stress its importance, by providing
that "(t)he privilege of the writ of habeas corpus shall not be suspended ...." It is only
by way of exception that it permits the suspension of the privilege "in cases of
invasion, insurrection, or rebellion" - or, under Art VII of the Constitution, "imminent
danger thereof" - "when the public safety requires it, in any of which events the same
may be suspended wherever during such period the necessity for such suspension
shall exist." 13For from being full and plenary, the authority to suspend the privilege of
the writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but, also, as regards the time when
and the place where it may be exercised. These factors and the aforementioned
setting or conditions mark, establish and define the extent, the confines and the limits
of said power, beyond which it does not exist. And, like the limitations and restrictions
imposed by the Fundamental Law upon the legislative department, adherence thereto
and compliance therewith may, within proper bounds, be inquired into by courts of
justice. Otherwise, the explicit constitutional provisions thereon would be meaningless.
Surely, the framers of our Constitution could not have intended to engage in such a
wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind that our
political system is essentially democratic and republican in character and that the
suspension of the privilege affects the most fundamental element of that system,
namely, individual freedom. Indeed, such freedom includes and connotes, as well as
demands, the right of every single member of our citizenry to freely discuss and
dissent from, as well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he deems unwise, improper or
inimical to the commonwealth, regardless of whether his own opinion is objectively
correct or not. The untrammelled enjoyment and exercise of such right - which, under
certain conditions, may be a civic duty of the highest order - is vital to the democratic
system and essential to its successful operation and wholesome growth and
development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one
enjoyed and exercised, not in derogation thereof, but consistently therewith, and,
hence, within the framework of the social order established by the Constitution and the
context of the Rule of Law. Accordingly, when individual freedom is used to destroy
that social order, by means of force and violence, in defiance of the Rule of Law - such
as by rising publicly and taking arms against the government to overthrow the same,
thereby committing the crime of rebellion - there emerges a circumstance that may
warrant a limited withdrawal of the aforementioned guarantee or protection, by
suspending the privilege of the writ of habeas corpus, when public safety requires it.
Although we must be forewarned against mistaking mere dissent - no matter how
emphatic or intemperate it may be - for dissidence amounting to rebellion or
insurrection, the Court cannot hesitate, much less refuse - when the existence of such
rebellion or insurrection has been fairly established or cannot reasonably be denied -
to uphold the finding of the Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land and depriving him, to this extent,
of such power, and, therefore, without violating the Constitution and jeopardizing the
very Rule of Law the Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege of the writ: (a)
there must be "invasion, insurrection or rebellion" or - pursuant to paragraph (2),
section 10 of Art. VII of the Constitution - "imminent danger thereof"; and (b) public
safety must require the aforementioned suspension. The President declared in
Proclamation No. 889, as amended, that both conditions are present.
As regards the first condition, our jurisprudence 14attests abundantly to the
Communist activities in the Philippines, especially in Manila, from the late twenties to
the early thirties, then aimed principally at incitement to sedition or rebellion, as the
immediate objective. Upon the establishment of the Commonwealth of the Philippines,
the movement seemed to have waned notably; but, the outbreak of World War II in the
Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed
firearms concomitant with the military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the Communist threat, with
such vigor as to be able to organize and operate in Central Luzon an army - called
HUKBALAHAP, during the occupation, and renamed Hukbong Mapagpalaya ng Bayan
(HMP) after liberation - which clashed several times with the armed forces of the
Republic. This prompted then President Quirino to issue Proclamation No. 210, dated
October 22, 1950, suspending the privilege of the writ of habeas corpus, the validity of
which was upheld in Montenegro v. Castaeda. 15Days before the promulgation of
said Proclamation, or on October 18, 1950, members of the Communist Politburo in
the Philippines were apprehended in Manila. Subsequently accused and convicted of
the crime of rebellion, they served their respective sentences. 16
The fifties saw a comparative lull in Communist activities, insofar as peace and
order were concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as
the Anti-Subversion Act, was approved, upon the ground - stated in the very preamble
of said statute - that.
... the Communist Party of the Philippines, although purportedly a political party, is
in fact an organized conspiracy to overthrow the Government of the Republic of the
Philippines, not only by force and violence but also by deceit, subversion and other
illegal means, for the purpose of establishing in the Philippines a totalitarian regime
subject to alien domination and control;
206
 ... the continued existence and activities of the Communist Party of the Philippines
constitutes a clear, present and grave danger to the security of the Philippines; 17and
... in the face of the organized, systematic and persistent subversion, national in
scope but international in direction, posed by the Communist Party of the Philippines
and its activities, there is urgent need for special legislation to cope with this continuing
menace to the freedom and security of the country....
In the language of the Report on Central Luzon, submitted, on September 4, 1971,
by the Senate Ad Hoc Committee of Seven - copy of which Report was filed in these
cases by the petitioners herein -
The years following 1963 saw the successive emergence in the country of several
mass organizations, notably the Lapiang Manggagawa (now the Socialist Party of the
Philippines) among the workers; the Malayang Samahan ng mga Magsasaka
(MASAKA) among the peasantry; the Kabataang Makabayan (KM) among the youth/
students; and the Movement for the Advancement of Nationalism (MAN) among the
intellectuals/professionals. The PKP has exerted all-out effort to infiltrate, influence and
utilize these organizations in promoting its radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been split into two (2)
groups, one of which - composed mainly of young radicals, constituting the Maoist
faction - reorganized the Communist Party of the Philippines early in 1969 and
established a New People's Army. This faction adheres to the Maoist concept of the
"Protracted People's War" or "War of National Liberation." Its "Programme for a
People's Democratic Revolution" states, inter alia:
The Communist Party of the Philippines is determined to implement its general
programme for a people's democratic revolution. All Filipino communists are ready to
sacrifice their lives for the worthy cause of achieving the new type of democracy, of
building a new Philippines that is genuinely and completely independent, democratic,
united, just and prosperous ...
xxx xxx xxx
The central task of any revolutionary movement is to seize political power. The
Communist Party of the Philippines assumes this task at a time that both the
international and national situations are favorable of asking the road of armed
revolution ... 19
In the year 1969, the NPA had - according to the records of the Department of
National Defense - conducted raids, resorted to kidnappings and taken part in other
violent incidents numbering over 230, in which it inflicted 404 casualties, and, in turn,
suffered 243 losses. In 1970, its records of violent incidents was about the same, but
the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong
to the traditional group or to the Maoist faction, believe that force and violence are
indispensable to the attainment of their main and ultimate objective, and act in
accordance with such belief, although they may disagree on the means to be used at a
given time and in a particular place; and (b) there is a New People's Army, other, of
course, that the arm forces of the Republic and antagonistic thereto. Such New
People's Army is per se proof of the existence of a rebellion, especially considering
that its establishment was announced publicly by the reorganized CPP. Such
announcement is in the nature of a public challenge to the duly constituted authorities
and may be likened to a declaration of war, sufficient to establish a war status or a
condition of belligerency, even before the actual commencement of hostilities.
We entertain, therefore, no doubts about the existence of a sizeable group of men
who have publicly risen in arms to overthrow the government and have thus been and
still are engaged in rebellion against the Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's Army proper is
too small, compared with the size of the armed forces of the Government, that the
Communist rebellion or insurrection cannot so endanger public safety as to require the
suspension of the privilege of the writ of habeas corpus. This argument does not
negate, however, the existence of a rebellion, which, from the constitutional and
statutory viewpoint, need not be widespread or attain the magnitude of a civil war. This
is apparent from the very provision of the Revised Penal Code defining the crime of
rebellion, 20which may be limited in its scope to "any part" of the Philippines, and,
also, from paragraph (14) of section 1, Article III of the Constitution, authorizing the
suspension of the privilege of the writ "wherever" - in case of rebellion - "the necessity
for such suspension shall exist." In fact, the case of Barcelon v. Baker referred to a
proclamation suspending the privilege in the provinces of Cavite and Batangas only.
The case of In re Boyle 21involved a valid proclamation suspending the privilege in a
smaller area - a country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second condition essential to
the validity of the suspension of the privilege - namely, that the suspension be required
by public safety. Before delving, however, into the factual bases of the presidential
findings thereon, let us consider the precise nature of the Court's function in passing
upon the validity of Proclamation No. 889, as amended.
Article VII of the Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system of government, the Executive
is supreme within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere allotted to
him by the Basic Law, and the authority to determine whether or not he has so acted is
vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme.
In the exercise of such authority, the function of the Court is merely to check - not
to supplant 22- the Executive, or to ascertain merely whether he had gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. To be sure, the power of the Court to determine the
validity of the contested proclamation is far from being identical to, or even comparable
with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal
from inferior courts, in which cases the appellate court has all of the powers of the
court of origin.
Under the principle of separation of powers and the system of checks and
balances, the judicial authority to review decisions of administrative bodies or agencies
is much more limited, as regards findings of fact made in said decisions. Under the
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English law, the reviewing court determines only whether there is some evidentiary
basis for the contested administrative findings; no quantitative examination of the
supporting evidence is undertaken. The administrative findings can be interfered with
only if there is no evidence whatsoever in support thereof, and said finding is,
accordingly, arbitrary, capricious and obviously unauthorized. This view has been
adopted by some American courts. It has, likewise, been adhered to in a number of
Philippine cases. Other cases, in both jurisdictions, have applied the "substantial
evidence" rule, which has been construed to mean "more than a mere scintilla" or
"relevant evidence as a reasonable mind might accept as adequate to support a
conclusion," 23even if other minds equally reasonable might conceivably opine
otherwise.
Manifestly, however, this approach refers to the review of administrative
determinations involving the exercise of quasi-judicial functions calling for or entailing
the reception of evidence. It does not and cannot be applied, in its aforesaid form, in
testing the validity of an act of Congress or of the Executive, such as the suspension of
the privilege of the writ of habeas corpus, for, as a general rule, neither body takes
evidence - in the sense in which the term is used in judicial proceedings - before
enacting a legislation or suspending the writ. Referring to the test of the validity of a
statute, the Supreme Court of the United States, speaking through Mr. Justice Roberts,
expressed, in the leading case of Nebbia v. New York, 24the view that:
... If the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process
are satisfied, and judicial determination to that effect renders a court functus officio ...
With the wisdom of the policy adopted, with the adequacy or practically of the law
enacted to forward it, the courts are both incompetent and unauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General -
... that judicial inquiry into the basis of the questioned proclamation can go no
further than to satisfy the Court not that the President's decision is correct and that
public safety was endanger by the rebellion and justified the suspension of the writ, but
that in suspending the writ, the President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of such test. Indeed,
the co-equality of coordinate branches of the Government, under our constitutional
system, seems to demand that the test of the validity of acts of Congress and of those
of the Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for
petitioner Rogelio Arienda admits that the proper standard is not correctness, but
arbitrariness.
Did public safety require the suspension of the privilege of the writ of habeas
corpus decreed in Proclamation No. 889, as amended? Petitioners submit a negative
answer upon the ground: (a) that there is no rebellion; (b) that, prior to and at the time
of the suspension of the privilege, the Government was functioning normally, as were
the courts; (c) that no untoward incident, confirmatory of an alleged July-August Plan,
has actually taken place after August 21, 1971; (d) that the President's alleged
apprehension, because of said plan, is non-existent and unjustified; and (e) that the
Communist forces in the Philippines are too small and weak to jeopardize public safety
to such extent as to require the suspension of the privilege of the writ of habeas
corpus.
As above indicated, however, the existence of a rebellion is obvious, so much so
that counsel for several petitioners herein have admitted it.
With respect to the normal operation of government, including courts, prior to and
at the time of the suspension of the privilege, suffice it to say that, if the conditions
were such that courts of justice no longer functioned, a suspension of the privilege
would have been unnecessary, there being no courts to issue the writ of habeas
corpus. Indeed, petitioners' reference to the normal operation of courts as a factor
indicative of the illegality of the contested act of the Executive stems, perhaps, from
the fact that this circumstance was adverted to in some American cases to justify the
invalidation therein decreed of said act of the Executive. Said cases involved, however,
the conviction by military courts of members of the civilian population charged with
common crimes. It was manifestly, illegal for military courts to assume jurisdiction over
civilians so charged, when civil courts were functioning normally.
Then, too, the alleged absence of any untoward incident after August 21, 1971,
does not necessarily bear out petitioners' view. What is more, it may have been due
precisely to the suspension of the privilege. To be sure, one of its logical effects is to
compel those connected with the insurrection or rebellion to go into hiding. In fact,
most of them could not be located by the authorities, after August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as incredible, upon the
theory that, according to Professor Egbal Ahman of Cornell University, "guerrilla use of
terror ... is sociological and psychologically selective," and that the indiscriminate
resort to terrorism is bound to boomerang, for it tends to alienate the people's
symphaty and to deprive the dissidents of much needed mass support. The fact,
however, is that the violence used is some demonstrations held in Manila in 1970 and
1971 tended to terrorize the bulk of its inhabitants. It would have been highly
imprudent, therefore, for the Executive to discard the possibility of a resort to terrorism,
on a much bigger scale, under the July-August Plan.
We will now address our attention to petitioners' theory to the effect that the New
People's Army of the Communist Party of the Philippines is too small to pose a danger
to public safety of such magnitude as to require the suspension of the privilege of the
writ of habeas corpus. The flaw in petitioners' stand becomes apparent when we
consider that it assumes that the Armed Forces of the Philippines have no other task
than to fight the New People's Army, and that the latter is the only threat - and a minor
one - to our security. Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971, the Executive had
information and reports - subsequently confirmed, in many respects, by the
abovementioned Report of the Senate Ad-Hoc Committee of Seven 25- to the effect
that the Communist Party of the Philippines does not merely adhere to Lenin's idea of
a swift armed uprising; that it has, also, adopted Ho Chi Minh's terrorist tactics and
resorted to the assassination of uncooperative local official; that, in line with this policy,
the insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that
there were fourteen (14) meaningful bombing incidents in the Greater Manila Area in
1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that,
soon after the Plaza Miranda incident, the NAWASA main pipe, at the Quezon City-
San Juan boundary, was bombed; that this was followed closely by the bombing of the
Manila City Hall, the COMELEC building, the Congress Building and the MERALCO
substation at Cubao, Quezon City; and that the respective residences of Senator Jose
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J. Roy and Congressman Eduardo Cojuangco were, likewise, bombed, as were the
MERALCO main office premises, along Ortigas Avenue, and the Doctor's
Pharmaceuticals, Inc. Building, in Caloocan City.
Petitioners, similarly, fail to take into account that - as per said information and
reports - the reorganized Communist Party of the Philippines has, moreover, adopted
Mao's concept of protracted people's war, aimed at the paralyzation of the will to resist
of the government, of the political, economic and intellectual leadership, and of the
people themselves; that conformably to such concept, the Party has placed special
emphasis upon a most extensive and intensive program of subversion by the
establishment of front organizations in urban centers, the organization of armed city
partisans and the infiltration in student groups, labor unions, and farmer and
professional groups; that the CPP has managed to infiltrate or establish and control
nine (9) major labor organizations; that it has exploited the youth movement and
succeeded in making Communist fronts of eleven (11) major student or youth
organizations; that there are, accordingly, about thirty (30) mass organizations actively
advancing the CPP interests, among which are the Malayang Samahan ng Magsasaka
(MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang
Molave (SM) and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of
August, 1971, the KM had two hundred forty-five (245) operational chapters
throughout the Philippines, of which seventy-three (73) were in the Greater Manila
Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in
the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had
recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-
three (33) ended in violence, resulting in fifteen (15) killed and over five hundred (500)
injured; that most of these actions were organized, coordinated or led by the
aforementioned front organizations; that the violent demonstrations were generally
instigated by a small, but well-trained group of armed agitators; that the number of
demonstrations heretofore staged in 1971 has already exceeded those of 1970; and
that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.
Subsequent events - as reported - have also proven that petitioners' counsel have
underestimated the threat to public safety posed by the New People's Army. Indeed, it
appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters and
staged one (1) raid, in consequence of which seven (7) soldiers lost their lives and two
(2)others were wounded, whereas the insurgents suffered five (5) casualties; that on
August 26, 1971, a well-armed group of NPA, trained by defector Lt. Victor Corpus,
attacked the very command port of TF LAWIN in Isabela, destroying two (2)
helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in
Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded
on the side of the Government, one (1) BSDU killed and three (3) NPA casualties; that
in an encounter at Botolan, Zambales, one (1) KM-SDK leader, an unidentified
dissident, and Commander Panchito, leader of the dissident group were killed; that on
August 26, 1971, there was an encounter in the barrio of San Pedro. Iriga City,
Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM members
were killed; that the current disturbances in Cotabato and the Lanao provinces have
been rendered more complex by the involvement of the CPP/NPA, for, in mid-1971, a
KM group, headed by Jovencio Esparagoza, contacted the Higa-onan tribes, in their
settlement in Magsaysay, Misamis Oriental, and offered them books, pamphlets and
brochures of Mao Tse Tung, as well as conducted teach-ins in the reservation; that
Esparagoza an operation of the PC in said reservation; and that there are now two (2)
NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its front organizations are,
according to intelligence findings, definitely capable of preparing powerful explosives
out of locally available materials; that the bomb used in the Constitutional Convention
Hall was a "clay-more" mine, a powerful explosive device used by the U.S. Army,
believed to have been one of many pilfered from the Subic Naval Base a few days
before; that the President had received intelligence information to the effect that there
was a July-August Plan involving a wave of assassinations, kidnappings, terrorism and
mass destruction of property and that an extraordinary occurence would signal the
beginning of said event; that the rather serious condition of peace and order in
Mindanao, particularly in Cotabato and Lanao, demanded the presence therein of
forces sufficient to cope with the situation; that a sizeable part of our armed forces
discharge other functions; and that the expansion of the CPP activities from Central
Luzon to other parts of the country, particularly Manila and its suburbs, the Cagayan
Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required that the rest of
our armed forces be spread thin over a wide area.
Considering that the President was in possession of the above data - except those
related to events that happened after August 21, 1971 - when the Plaza Miranda
bombing took place, the Court is not prepared to hold that the Executive had acted
arbitrarily or gravely abused his discretion when he then concluded that public safety
and national security required the suspension of the privilege of the writ, particularly if
the NPA were to strike simultaneously with violent demonstrations staged by the two
hundred forty-five (245) KM chapters, all over the Philippines, with the assistance and
cooperation of the dozens of CPP front organizations, and the bombing or water mains
and conduits, as well as electric power plants and installations - a possibility which, no
matter how remote, he was bound to forestall, and a danger he was under obligation to
anticipate and arrest.
He had consulted his advisers and sought their views. He had reason to feel that
the situation was critical - as, indeed, it was - and demanded immediate action. This he
took believing in good faith that public safety required it. And, in the light of the
circumstances adverted to above, he had substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the President had no authority to suspend the
privilege in the entire Philippines, even if he may have been justified in doing so in
some provinces or cities thereof. At the time of the issuance of Proclamation No. 889,
he could not be reasonably certain, however, about the placed to be excluded from the
operation of the proclamation. He needed some time to find out how it worked, and as
he did so, he caused the suspension to be gradually lifted, first, on September 18,
1971, in twenty-seven (27) provinces, three (3) sub-provinces and twenty six (26)
cities; then, on September 25, 1971, in order fourteen (14) provinces and thirteen (13)
cities; and, still later, on October 4, 1971, in seven (7) additional provinces and four (4)
cities, or a total of forty-eight (48) provinces, three (3) sub-provinces and forth-three
(43) cities, within a period of forty-five (45) days from August 21, 1971.
Neither should We overlook the significance of another fact. The President could
have declared a general suspension of the privilege. Instead, Proclamation No. 889
limited the suspension to persons detained "for crimes of insurrection or rebellion, and
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all other crimes and offenses committed by them in furtherance or on the occasion
thereof, or incident thereto, or in connection therewith." Even this was further limited by
Proclamation No. 889-A, which withdrew from the coverage of the suspension persons
detained for other crimes and offenses committed "on the occasion" of the insurrection
or rebellion, or "incident thereto, in or connection therewith." In fact, the petitioners in
L-33964, L-33982 and L-34004 concede that the President had acted in good faith.
In case of invasion, insurrection or rebellion or imminent danger thereof, the
President has, under the Constitution, three (3) courses of action open to him, namely:
(a) to call out the armed forces; (b) to suspend the privilege of the writ of habeas
corpus; and (c) to place the Philippines or any part thereof under martial law. He had,
already, called out the armed forces, which measure, however, proved inadequate to
attain the desired result. Of the two (2)other alternatives, the suspension of the
privilege is the least harsh.
In view of the foregoing, it does not appear that the President has acted arbitrary in
issuing Proclamation No. 889, as amended, nor that the same is unconstitutional.
III
The next question for determination is whether petitioners herein are covered by
said Proclamation, as amended. In other words, do petitioners herein belong to the
class of persons as to whom privilege of the writ of habeas corpus has been
suspended?
In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964,
Gerardo Tomas, petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013,
were, on November 13, 1971, released "permanently" - meaning, perhaps, without any
intention to prosecute them - upon the ground that, although there was reasonable
ground to believe that they had committed an offense related to subversion, the
evidence against them is insufficient to warrant their prosecution; that Teodosio
Lansang, one of the petitioners in L-33964, Rogelio Arienda, petitioner in L-33965,
Nemesio Prudente, petitioner in L-33982, Filomeno de Castro and Barcelisa C. de
Castro, for whose benefit the petition in L-34039 was filed, and Antolin Oreta, Jr.,
petitioner in L-34265, were, on said date, "temporarily released"; that Rodolfo del
Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-33973, as well as
Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, are
still under detention and, hence, deprived of their liberty, they - together with over forty
(40) other persons, who are at large - having been accused, in the Court of First
Instance of Rizal, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion
Act); and that Angelo delos Reyes and Teresito Sison, intervenors in said L-33964,
L-33965 and
L-33973, are, likewise, still detained and have been charged - together with over
fifteen (15) other persons, who are, also, at large - with another violation of said Act, in
a criminal complaint filed with the City Fiscal's Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang - petitioners in L-33965 - who
were released as early as August 31, 1971, as well as to petitioners Nemesio
Prudente, Teodosio Lansang, Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro,
Barcelisa C. de Castro, Reynaldo Rimando, Gerardo Tomas and Bayani Alcala, who
were released on November 13, 1971, and are no longer deprived of their liberty, their
respective petitions have, thereby, become moot and academic, as far as their prayer
for release is concerned, and should, accordingly, be dismissed, despite the opposition
thereto of counsel for Nemesio Prudente and Gerardo Tomas who maintain that, as
long as the privilege of the writ remains suspended, these petitioners might be
arrested and detained again, without just cause, and that, accordingly, the issue raised
in their respective petitions is not moot. In any event, the common constitutional and
legal issues raised in these cases have, in fact, been decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in
L-33964, L-33965 and L-33973, Luzvimindo David, petitioner in L-33973, and Gary
Olivar, petitioner in L-34339, who are still detained? The suspension of the privilege of
the writ was decreed by Proclamation No. 889, as amended, for persons detained "for
the crimes of insurrection or rebellion and other overt acts committed by them in
furtherance thereof."
The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor
Felipe, Angelo de los Reyes, Teresito Sison and Gary Olivar are accused in Criminal
Case No. Q-1623 of the Court of First Instance of Rizal with a violation of the Anti-
Subversion Act and that the similar charge against petitioners Angelo de los Reyes
and Teresito Sison in a criminal complaint, originally filed with the City Fiscal of
Quezon City, has, also, been filed with said court. Do the offenses so charged
constitute one of the crimes or overt acts mentioned in Proclamation No. 889, as
amended?
In the complaint in said Criminal Case No. 1623, it is alleged:
That in or about the year 1968 and for sometime prior thereto and thereafter up to
and including August 21, 1971, in the city of Quezon, Philippines, and elsewhere in the
Philippines, within the jurisdiction of this Honorable Court, the above-named accused
knowingly, wilfully and by overt acts became officers and/or ranking leaders of the
Communist Party of the Philippines, a subversive association as defined by Republic
Act No. 1700, which is an organized conspiracy to overthrow the government of the
Republic of the Philippines by force, violence, deceit, subversion and other illegal
means, for the purpose of establishing in the Philippines a communist totalitarian
regime subject to alien domination and control;
That all the above-named accused, as such officers and/or ranking leaders of the
Communist Party of the Philippines conspiring, confederating and mutual helping one
another, did then and there knowingly, wilfully, and feloniously and by overt acts
committed subversive acts all intended to overthrow the government of the Republic of
the Philippines, as follows:
1. By rising publicly and taking arms against the forces of the government,
engaging in war against the forces of the government, destroying property or
committing serious violence, exacting contributions or diverting public lands or property
from the law purposes for which they have been appropriated;
2. By engaging by subversion thru expansion and requirement activities not only of
the Communist Party of the Philippines but also of the united front organizations of the
Communist Party of the Philippines as the Kabataang Makabayan (KM), Movement for
the Democratic Philippines (MDP), Samahang Demokratikong Kabataan (SDK),
Students' Alliance for National Democracy (STAND), MASAKA Olalia-faction, Student
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Cultural Association of the University of the Philippines (SCAUP), KASAMA,
Pagkakaisa ng Magbubukid ng Pilipinas (PMP) and many others; thru agitation
promoted by rallies, demonstration and strikes some of them violent in nature,
intended to create social discontent, discredit those in power and weaken the people's
confidence in the government; thru consistent propaganda by publications, writing,
posters, leaflets of similar means; speeches, teach-ins, messages, lectures or other
similar means; or thru the media as the TV, radio or newspapers, all intended to
promote the Communist pattern of subversion;
3. Thru urban guerilla warfare characterized by assassinations, bombings,
sabotage, kidnapping and arson, intended to advertise the movement, build up its
morale and prestige, discredit and demoralize the authorities to use harsh and
repressive measures, demoralize the people and weaken their confidence in the
government and to weaken the will of the government to resist.
That the following aggravating circumstances attended the commission of the
offense:
a. That the offense was committed in contempt of and with insult to the public
authorities;
b. That some of the overt acts were committed in the Palace of the Chief
Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid of armed men;
e. That the offense was committed with the aid of persons under fifteen(15) years
old.
Identical allegations are made in the complaint filed with the City Fiscal of Quezon
City, except that the second paragraph thereof is slightly more elaborate than that of
the complaint filed with the CFI, although substantially the same. 26
In both complaints, the acts imputed to the defendants herein constitute rebellion
and subversion, of - in the language of the proclamation - "other overt acts
committed ... in furtherance" of said rebellion, both of which are covered by the
proclamation suspending the privilege of the writ. It is clear, therefore, that the crime
for which the detained petitioners are held and deprived of their liberty are among
those for which the privilege of the writ of habeas corpus has been suspended.
Up to this point, the Members of the Court are unanimous on the legal principles
enunciated.
After finding that Proclamation No. 889, as amended, is not invalid and that
petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo
del Rosario and Teresito Sison are detained for and actually accused of an offense for
which the privilege of the writ has been suspended by said proclamation, our next step
would have been the following: The Court, or a commissioner designated by it, would
have received evidence on whether - as stated in respondents' "Answer and Return" -
said petitioners had been apprehended and detained "on reasonable belief" that they
had "participated in the crime of insurrection or rebellion."
It is so happened, however, that on November 13, 1971 - or two (2) days before
the proceedings relative to the briefing held on October 28 and 29, 1971, had been
completed by the filing 27of the summary of the matters then taken up - the
aforementioned criminal complaints were filed against said petitioners. What is more,
the preliminary examination and/or investigation of the charges contained in said
complaints has already begun. The next question, therefore, is: Shall We now order, in
the cases at hand, the release of said petitioners herein, despite the formal and
substantial validity of the proclamation suspending the privilege, despite the fact that
they are actually charged with offenses covered by said proclamation and despite the
aforementioned criminal complaints against them and the preliminary examination and/
or investigations being conducted therein?
The Members of the Court, with the exception of Mr. Justice Fernando, are of the
opinion, and, so hold, that, instead of this Court or its Commissioner taking the
evidence adverted to above, it is best to let said preliminary examination and/or
investigation to be completed, so that petitioners' released could be ordered by the
court of first instance, should it find that there is no probable cause against them, or a
warrant for their arrest could be issued, should a probable cause be established
against them. Such course of action is more favorable to the petitioners, inasmuch as
the preliminary examination or investigation requires a greater quantum of proof than
that needed to establish that the Executive had not acted arbitrary in causing the
petitioners to be apprehended and detained upon the ground that they had participated
in the commission of the crime of insurrection or rebellion. And, it is mainly for the
reason that the Court has opted to allow the Court of First Instance of Rizal to proceed
with the determination of the existence of probable cause, although ordinarily the Court
would have merely determined the existence of the substantial evidence of petitioners'
connection with the crime of rebellion. Besides, the latter alternative would require the
reception of evidence by this Court and thus duplicate the proceedings now taking
place in the court of first instance. What is more, since the evidence involved in the
same proceedings would be substantially the same and the presentation of such
evidence cannot be made simultaneously, each proceeding would tend to delay the
other.
Mr. Justice Fernando is of the opinion - in line with the view of Mr. Justice Tuason,
in Nava v. Gatmaitan, 28to the effect that "... if and when formal complaint is
presented, the court steps in and the executive steps out. The detention ceases to be
an executive and becomes a judicial concern ..." - that the filing of the above-
mentioned complaint against the six (6) detained petitioners herein, has the effect of
the Executive giving up his authority to continue holding them pursuant to
Proclamation No. 889, as amended, even if he did not so intend, and to place them
fully under the authority of courts of justice, just like any other person, who, as such,
cannot be deprived of his liberty without lawful warrant, which has not, as yet, been
issued against anyone of them, and that, accordingly, We should order their immediate
release. Despite the humanitarian and libertarian spirit with which this view had been
espoused, the other Members of the Court are unable to accept it because:
(a) If the proclamation suspending the privilege of the writ of habeas corpus is valid
- and We so hold it to be - and the detainee is covered by the proclamation, the filing of
a complaint or information against him does not affect the suspension of said privilege,
and, consequently, his release may not be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or information does not detract from
the validity and efficacy of the suspension of the privilege, it would be more reasonable
to construe the filing of said formal charges with the court of first instance as an
expression of the President's belief that there are sufficient evidence to convict the
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petitioners so charged and that hey should not be released, therefore, unless and until
said court - after conducting the corresponding preliminary examination and/or
investigation - shall find that the prosecution has not established the existence of a
probable cause. Otherwise, the Executive would have released said accused, as were
the other petitioners herein;
(c) From a long-range viewpoint, this interpretation - of the act of the President in
having said formal charges filed - is, We believe, more beneficial to the detainees than
that favored by Mr. Justice Fernando. His view - particularly the theory that the
detainees should be released immediately, without bail, even before the completion of
said preliminary examination and/or investigation - would tend to induce the Executive
to refrain from filing formal charges as long as it may be possible. Manifestly, We
should encourage the early filing of said charges, so that courts of justice could
assume jurisdiction over the detainees and extend to them effective protection.
Although some of the petitioners in these cases pray that the Court decide whether
the constitutional right to bail is affected by the suspension of the privilege of the writ of
habeas corpus, We do not deem it proper to pass upon such question, the same not
having been sufficiently discussed by the parties herein. Besides, there is no point in
settling said question with respect to petitioners herein who have been released.
Neither is necessary to express our view thereon, as regards those still detained,
inasmuch as their release without bail might still be decreed by the court of first
instance, should it hold that there is no probable cause against them. At any rate,
should an actual issue on the right to bail arise later, the same may be brought up in
appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing Proclamation No.
889, as amended, and that, accordingly, the same is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013,
L-34039 and L-34265, insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio
Arienda, Vicentellao, Juan Carandang, Nemesio E. Prudente, Gerardo Tomas,
Reynaldo Rimando, Filomeno M. de Castro, Barcelisa C. de Castro and Antolin Oreta,
Jr. are concerned;
3. The Court of First Instance of Rizal is hereby directed to act with utmost dispatch
in conducting the preliminary examination and/or investigation of the charges for
violation of the Anti-Subversion Act filed against herein petitioners Luzvimindo David,
Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito
Sison, and to issue the corresponding warrants of arrest, if probable cause is found to
exist against them, or, otherwise, to order their release; and
4. Should there be undue delay, for any reason whatsoever, either in the
completion of the aforementioned preliminary examination and/or investigation, or in
the issuance of the proper orders or resolution in connection therewith, the parties may
by motion seek in these proceedings the proper relief.
5. Without special pronouncement as to costs. It is so ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and Makasiar,
JJ., concur.
G.R. No. L-29169 August 19, 1968
ROGER CHAVEZ, Petitioner, vs. THE HONORABLE COURT OF APPEALS, THE
PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF
MANILA, Respondents.
SANCHEZ, J.:
The thrust of petitioner's case presented in his original and supplementary petitions
invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed
from imprisonment upon the ground that in the trial which resulted in his conviction1 he
was denied his constitutional right not to be compelled to testify against himself. There
is his prayer, too, that, should he fail in this, he be granted the alternative remedies of
certiorari to strike down the two resolutions of the Court of Appeals dismissing his
appeal for failure to file brief, and of mandamus to direct the said court to forward his
appeal to this Court for the reason that he was raising purely questions of law.
The indictment in the court below - the third amended information - upon which the
judgment of conviction herein challenged was rendered, was for qualified theft of a
motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No.
H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were
the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo
Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis
Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe,
Charlie Doe and Paul Doe.2
Averred in the aforesaid information was that on or about the 14th day of
November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of
confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in
asporting the motor vehicle above-described.
Upon arraignment, all the accused, except the three Does who have not been
identified nor apprehended, pleaded not guilty.
On July 23, 1963, trial commenced before the judge presiding Branch IX of the
Court of First Instance of Rizal in Quezon City.
The trial opened with the following dialogue, which for the great bearing it has on
this case, is here reproduced:.
COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the accused].
ATTY. CARBON [Counsel for petitioner Chavez]:
I am quite taken by surprise, as counsel for the accused Roger Chavez, with this
move of the Fiscal in presenting him as his witness. I object.
COURT:
On what ground, counsel? .
ATTY. CARBON:
On the ground that I have to confer with my client. It is really surprising that at this
stage, without my being notified by the Fiscal, my client is being presented as witness
212
for the prosecution. I want to say in passing that it is only at this very moment that I
come to know about this strategy of the prosecution.
COURT (To the Fiscal):
You are not withdrawing the information against the accused Roger Chavez by
making [him a] state witness?.
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
ATTY. CARBON:
As a matter of right, because it will incriminate my client, I object.
COURT:
The Court will give counsel for Roger Chavez fifteen minutes within which to confer
and explain to his client about the giving of his testimony.
xxxxxxxxx I did not know until this morning that one of the accused will testify as witness for
COURT: [after the recess]
Are the parties ready? .
FISCAL:
We are ready to call on our first witness, Roger Chavez.
ATTY. CARBON:
As per understanding, the proceeding was suspended in order to enable me to
confer with my client.
I conferred with my client and he assured me that he will not testify for the
prosecution this morning after I have explained to him the consequences of what will
transpire.
COURT:
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the
witness-stand including the accused.
If there should be any question that is incriminating then that is the time for counsel
to interpose his objection and the court will sustain him if and when the court feels that
the answer of this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have the accused called on the
witnessstand.
ATTY. CARBON:
I submit.
xxxxxxxxx
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being called to testify for the
prosecution is something so sudden that has come to the knowledge of this counsel.
This representation has been apprised of the witnesses embraced in the
information.
For which reason I pray this court that I be given at least some days to meet
whatever testimony this witness will bring about. I therefore move for postponement of
today's hearing.
COURT:
The court will give counsel time within which to prepare his cross-examination of
this witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for the prosecution in this
criminal case are those only listed in the information.
the prosecution.
COURT:
That's the reason why the court will go along with counsels for the accused and will
give them time within which to prepare for their cross-examination of this witness.
The court will not defer the taking of the direct examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained
at the Manila Police Department headquarters, after being duly sworn according to
law, declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this case No. Q-5311.
The information alleges conspiracy. Under Rule 123, Section 12, it states:
'The act or declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after the conspiracy is
shown by evidence other than such act or declaration.'
COURT:
That is premature, counsel. Neither the court nor counsels for the accused know
what the prosecution events to establish by calling this witness to the witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the "direct examination" of Roger
Chavez by "Fiscal Grecia".
213
 Came the judgment of February 1, 1965. The version of the prosecution as found
by the court below may be briefly narrated as follows:
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a
Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo
Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee
whether his car was for sale. Lee answered affirmatively and left his address with
Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him
about the Thunderbird. But Sumilang said that he had changed his mind about buying
a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for
P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez,
they went to see Luis Asistio, who he knew was lending money on car mortgages and
who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car.
Asistio however told the two that he had a better idea on how to raise the money. His
plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star,
introduce him as a buyer to someone who was selling a car and, after the deed of sale
is signed, by trickery to run away with the car. Asistio would then register it, sell it to a
third person for a profit. Chavez known to be a car agent was included in the plan. He
furnished the name of Johnson Lee who was selling his Thunderbird.
In the morning of November 14, Chavez telephoned Johnson Lee and arranged for
an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his
Thunderbird on Highway 54. Sumilang was introduced as the interested buyer.
Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee
agreed on the purchase price (P21.000.00), they went to Binondo to Johnson Lee's
cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to
see a lawyer notary public in Quezon City, known to Chavez for the drafting of the
deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the
vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the
witnesses thereto.
As payment was to be made at Eugene's restaurant in Quezon City, all of them
then drove in the Thunderbird car to that place. The deed of sale and other papers
remained in the pockets of Johnson Lee.
At Eugene's, a man approached Sumilang with a note which stated that the money
was ready at the Dalisay Theater. Sumilang then wrote on the same note that the
money should be brought to the restaurant. At the same time he requested Lee to
exhibit the deed of sale of the car to the note bearer.4
Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left
the table to pose for pictures with some fans and come back, again left never to return.
So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The
two Chinese could not locate Sumilang and Chavez. They went out to the place where
the Thunderbird was parked, found that it was gone. They then immediately reported
its loss to the police. Much later, the NBI recovered the already repainted car and
impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that
same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument
in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth
P800.00 as the latter's share in the transaction. On the 14th of November, the
registration of the car was transferred in the name of Sumilang in Cavite City, and
three days later, in the name of Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's version, corroborated in part by
Asistio, may be condensed as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station.
The latter informed him that there was a Thunderbird from Clark Field for sale for a
price between P20,000.00 and P22,000.00. Chavez said that it could be held for him
with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of a
certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to
Sumilang. That check was exhibited in court. Sumilang and Chavez then went to
Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and
Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-
loan backed up by the P5,000.00-check aforesaid on condition that it should not be
cashed immediately as there were not enough funds therefor. Baltazar and Cailles
agreed to give the money the nextday as long as the check would be left with them
and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed
Sumilang that Chavez picked up the money the next day. Four or five days afterwards,
Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the
deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez asked
Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a
note requesting that they accommodate him once more. He also sent a check, again
without funds. Baltazar gave the money after verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that the
car was ready if Sumilang was ready with the rest of the money. So Sumilang got
P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately
gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It
was then that Chavez told Sumilang that the car was already bought by a Chinese who
would be the vendor.
The purchase price finally agreed upon between Sumilang and Johnson Lee was
P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang
told Lee that he already paid part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated.
There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation
at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual
warned that Chavez was a "smart" agent and advised that Sumilang should have a
receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a
receipt for Chavez to sign.
After Sumilang returned from posing for some photographs with some of his fans,
Bimbo showed him the receipt already signed by Chavez. Sumilang requested
Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was
offered as an exhibit by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the
deed of sale, the registration papers and the keys to the car. After shaking hands with
Lee, Sumilang drove away in the car with his driver at the wheel.
214
 Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to
a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his
Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the
offer was good, and knowing Asistio's and his friends' reputation for always getting
what they wanted, Sumilang consented to the sale. Asistio tendered a down payment
of P1,000.00; the balance he promised to pay the next day after negotiating with some
financing company. Before said balance could be paid, the car was impounded.
The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's
and Cailles' corroborations, that he paid good money for the car. Sumilang was thus
cleared. So was Asistio whom the trial court believed to be a mere buyer of the car.
And so, the prosecution's theory of conspiracy was discounted.
As to the other accused, the court found no case against Pedro Rebullo alias "Pita"
and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for
in the first place he was not identified by Johnson Lee in court.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does not
offer any defense. As a matter of fact, his testimony as witness for the prosecution
establishes his guilt beyond reasonable doubt."5 The trial court branded him "a self-
confessed culprit".6 The court further continued:
It is not improbable that true to the saying that misery loves company Roger
Chavez tried to drag his co-accused down with him by coloring his story with
fabrications which he expected would easily stick together what with the newspaper
notoriety of one and the sensationalism caused by the other. But Roger Chavez'
accusations of Asistio's participation is utterly uncorroborated. And coming, as it does,
from a man who has had at least two convictions for acts not very different from those
charged in this information, the Court would be too gullible if it were to give full
credence to his words even if they concerned a man no less notorious than himself.7
The trial court then came to the conclusion that if Johnson Lee was not paid for his
car, he had no one but Roger Chavez to blame.
The sum of all these is that the trial court freed all the accused except Roger
Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft.
He was accordingly sentenced to suffer an indeterminate penalty of not less than ten
(10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8)
months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee
in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to
undergo the accessory penalties prescribed by law, and to pay the costs. The
Thunderbird car then in the custody of the NBI was ordered to be turned over to
Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless
the latter chose to pay P21,500.00, representing the balance of the contract price for
the car.
The foregoing sentence was promulgated on March 8, 1965. Roger Chavez
appealed to the Court of Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel
for Roger Chavez, to show cause within ten days from notice why Chavez' appeal
should not be considered abandoned and dismissed. Reason for this is that said
lawyer received notice to file brief on December 28, 1967 and the period for the filing
thereof lapsed on January 27, 1968 without any brief having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also
stated that if she were allowed to file appellant's brief she would go along with the
factual findings of the court below but will show however that its conclusion is
erroneous.8
On May 14, 1968, the Court of Appeals, despite the foregoing explanation,
resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21,
1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its
May 14 resolution dismissing the appeal, directed the City Warden of Manila where
Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to
turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below,
and ordered remand of the case to the Quezon City court for execution of judgment.
It was at this stage that the present proceedings were commenced in this Court.
Upon the petitions, the return, and the reply, and after hearing on oral arguments,
we now come to grips with the main problem presented.
We concentrate attention on that phase of the issues which relates petitioner's
assertion that he was compelled to testify against himself. For indeed if this one
question is resolved in the affirmative, we need not reach the others; in which case,
these should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with proof, of violation of
his right - constitutionally entrenched - against self-incrimination. He asks that the hand
of this Court be made to bear down upon his conviction; that he be relieved of the
effects thereof. He asks us to consider the constitutional injunction that "No person
shall be compelled to be a witness against himself,"9 fully echoed in Section 1, Rule
115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled:
"(e) To be exempt from being a witness against himself." .
It has been said that forcing a man to be a witness against himself is at war with
"the fundamentals of a republican government"; 10 that [i]t may suit the purposes of
despotic power but it can not abide the pure atmosphere of political liberty and
personal freedom."11 Mr. Justice Abad Santos recounts the historical background of
this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had
its origin in a protest against the inquisitorial and manifestly unjust methods of
interrogating accused persons, which has long obtained in the continental system,
and, until the expulsion of the Stuarts from the British throne in 1688, and the erection
of additional barriers for the protection of the people against the exercise of arbitrary
power, was not uncommon even in England. While the admissions of confessions of
the prisoner, when voluntarily and freely made, have always ranked high in the scale of
incriminating evidence, if an accused person be asked to explain his apparent
connection with a crime under investigation, the ease with which the questions put to
him may assume an inquisitorial character, the temptation to press, the witness unduly,
to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him
into fatal contradictions, which is so painfully evident in many of the earlier state trials,
notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made
the system so odious as to give rise to a demand for its total abolition. The change in
the English criminal procedure in that particular seems to be founded upon no statute
and no judicial opinion, but upon a general and silent acquiescence of the courts in a
popular demand. But, however adopted, it has become firmly embedded in English, as
well as in American jurisprudence. So deeply did the iniquities of the ancient system
215
impress themselves upon the minds of the American colonists that the states, with one
accord, made a denial of the right to question an accused person a part of their
fundamental law, so that a maxim which in England was a mere rule of evidence,
became clothed in this country with the impregnability of a constitutional
enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr.
Justice Malcolm, in expressive language, tells us that this maxim was recognized in
England in the early days "in a revolt against the thumbscrew and the rack." 13 An old
Philippine case [1904] 14 speaks of this constitutional injunction as "older than the
Government of the United States"; as having "its origin in a protest against the
inquisitorial methods of interrogating the accused person"; and as having been
adopted in the Philippines "to wipe out such practices as formerly prevailed in these
Islands of requiring accused persons to submit to judicial examinations, and to give
testimony regarding the offenses with which they were charged."
So it is then that this right is "not merely a formal technical rule the enforcement of
which is left to the discretion of the court"; it is mandatory; it secures to a defendant a
valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few
months ago, the Supreme Court of the United States (January 29, 1968), speaking
thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield
the guilty and imprudent as well as the innocent and foresighted." 16
It is in this context that we say that the constitutional guarantee may not be treated
with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable
and substantive right. Taada and Fernando (Constitution of the Philippines, 4th ed.,
vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that
the constitutional proscription was established on broad grounds of public policy and
humanity; of policy because it would place the witness against the strongest
temptation to commit perjury, and of humanity because it would be to extort a
confession of truth by a kind of duress every species and degree of which the law
abhors. 17
Therefore, the court may not extract from a defendant's own lips and against his
will an admission of his guilt. Nor may a court as much as resort to compulsory
disclosure, directly or indirectly, of facts usable against him as a confession of the
crime or the tendency of which is to prove the commission of a crime. Because, it is his
right to forego testimony, to remain silent, unless he chooses to take the witness stand
- with undiluted, unfettered exercise of his own free, genuine will.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressure which operates
to overbear his will, disable him from making a free and rational choice, or impair his
capacity for rational judgment would in our opinion be sufficient. So is moral coercion
"tending to force testimony from the unwilling lips of the defendant." 18
2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a
defendant in a criminal case. He was called by the prosecution as the first witness in
that case to testify for the People during the first day of trial thereof. Petitioner objected
and invoked the privilege of self-incrimination. This he broadened by the clear cut
statement that he will not testify. But petitioner's protestations were met with the
judge's emphatic statement that it "is the right of the prosecution to ask anybody to act
as witness on the witness stand including the accused," and that defense counsel
"could not object to have the accused called on the witness stand." The cumulative
impact of all these is that accused-petitioner had to take the stand. He was thus
peremptorily asked to create evidence against himself. The foregoing situation molds a
solid case for petitioner, backed by the Constitution, the law, and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from an ordinary
witness. Whereas an ordinary witness may be compelled to take the witness stand and
claim the privilege as each question requiring an incriminating answer is shot at him,
19 and accused may altogether refuse to take the witness stand and refuse to answer
any and all questions. 20 For, in reality, the purpose of calling an accused as a witness
for the People would be to incriminate him. 21 The rule positively intends to avoid and
prohibit the certainly inhuman procedure of compelling a person "to furnish the missing
evidence necessary for his conviction." 22 This rule may apply even to a co-defendant
in a joint trial.23
And the guide in the interpretation of the constitutional precept that the accused
shall not be compelled to furnish evidence against himself "is not the probability of the
evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly
erroneous for the trial judge to placate petitioner with these words:.
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the
witness-stand including the accused.
If there should be any question that is incriminating then that is the time for counsel
to interpose his objection and the court will sustain him if and when the court feels that
the answer of this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witness
stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208,
244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts
remains concealed within his bosom, he is safe; but draw it from thence, and he is
exposed" - to conviction.
The judge's words heretofore quoted - "But surely counsel could not object to have
the accused called on the witness stand" - wielded authority. By those words, petitioner
was enveloped by a coercive force; they deprived him of his will to resist; they
foreclosed choice; the realities of human nature tell us that as he took his oath to tell
the truth, the whole truth and nothing but the truth, no genuine consent underlay
submission to take the witness stand. Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his objections to be a
witness for the People is at once apparent. The record discloses that by leading
questions Chavez, the accused, was made to affirm his statement given to the NBI
agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement
detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to
deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the
same anew in open court. He identified the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly of the view that the case for the
People was built primarily around the admissions of Chavez himself. The trial court
216
described Chavez as the "star witness for the prosecution". Indeed, the damaging
facts forged in the decision were drawn directly from the lips of Chavez as a
prosecution witness and of course Ricardo Sumilang for the defense. There are the
unequivocal statements in the decision that "even accused Chavez" identified "the very
same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as
witness for the prosecution establishes his guilt beyond reasonable doubt and that
Chavez is "a self-confessed culprit".
4. With all these, we have no hesitancy in saying that petitioner was forced to
testify to incriminate himself, in full breach of his constitutional right to remain silent. It
cannot be said now that he has waived his right. He did not volunteer to take the stand
and in his own defense; he did not offer himself as a witness; on the contrary, he
claimed the right upon being called to testify. If petitioner nevertheless answered the
questions inspite of his fear of being accused of perjury or being put under contempt,
this circumstance cannot be counted against him. His testimony is not of his own
choice. To him it was a case of compelled submission. He was a cowed participant in
proceedings before a judge who possessed the power to put him under contempt had
he chosen to remain silent. Nor could he escape testifying. The court made it
abundantly clear that his testimony at least on direct examination would be taken right
then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking the stand became
fruitless, no objections to questions propounded to him were made. Here involve is not
a mere question of self-incrimination. It is a defendant's constitutional immunity from
being called to testify against himself. And the objection made at the beginning is a
continuing one.
There is therefore no waiver of the privilege. "To be effective, a waiver must be
certain and unequivocal, and intelligently, understandably, and willingly made; such
waiver following only where liberty of choice has been fully accorded. After a claim a
witness cannot properly be held to have waived his privilege on vague and uncertain
evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out
that "courts indulge every reasonable presumption against waiver" of fundamental
constitutional rights and that we "do not presume acquiescence in the loss of
fundamental rights." A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of the case heretofore
adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission,
defendant proved his guilt, still, his original claim remains valid. For the privilege, we
say again, is a rampart that gives protection - even to the guilty. 30
5. The course which petitioner takes is correct. Habeas corpus is a high
prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a
person whose liberty is illegally restrained such as when the accused's constitutional
rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33
and therefore invalidates the trial and the consequent conviction of the accused whose
fundamental right was violated. 34 That void judgment of conviction may be
challenged by collateral attack, which precisely is the function of habeas corpus. 35
This writ may issue even if another remedy which is less effective may be availed of by
the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court
of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon
a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of
habeas corpus as an extraordinary remedy must be liberally given effect 40 so as to
protect well a person whose liberty is at stake. The propriety of the writ was given the
nod in that case, involving a violation of another constitutional right, in this wise:
Since the Sixth Amendment constitutionally entitles one charged with crime to the
assistance of Counsel, compliance with this constitutional mandate is an essential
jurisdictional prerequisite to a Federal Court's authority. When this right is properly
waived, the assistance of Counsel is no longer a necessary element of the Court's
jurisdiction to proceed to conviction and sentence. If the accused, however, is not
represented by Counsel and has not competently and intelligently waived his
constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his liberty. A court's jurisdiction at the
beginning of trial may be lost "in the course of the proceedings" due to failure to
complete the court - as the Sixth Amendment requires - by providing Counsel for an
accused who is unable to obtain Counsel, who has not intelligently waived this
constitutional guaranty, and whose life or liberty is at stake. If this requirement of the
Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed.
The judgment of conviction pronounced by a court without jurisdiction is void, and one
imprisoned thereunder may obtain release of habeas corpus. 41
Under our own Rules of Court, to grant the remedy to the accused Roger Chavez
whose case presents a clear picture of disregard of a constitutional right is absolutely
proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by
law, "to all cases of illegal confinement or detention by which any person is deprived of
his liberty, or by which the rightful custody of any person is withheld from the person
entitled thereto.
Just as we are about to write finis to our task, we are prompted to restate that: "A
void judgment is in legal effect no judgment. By it no rights are divested. From it no
rights can be obtained. Being worthless in itself, all proceedings founded upon it are
equally worthless. It neither binds nor bars any one. All acts performed under it and all
claims flowing out of it are void. The parties attempting to enforce it may be
responsible as trespassers. ... " 42
6. Respondents' return 43 shows that petitioner is still serving under a final and
valid judgment of conviction for another offense. We should guard against the
improvident issuance of an order discharging a petitioner from confinement. The
position we take here is that petitioner herein is entitled to liberty thru habeas corpus
only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal,
Quezon City Branch, under which he was prosecuted and convicted.
Upon the view we take of this case, judgment is hereby rendered directing the
respondent Warden of the City Jail of Manila or the Director of Prisons or any other
officer or person in custody of petitioner Roger Chavez by reason of the judgment of
the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311,
entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to
discharge said Roger Chavez from custody, unless he is held, kept in custody or
detained for any cause or reason other than the said judgment in said Criminal Case
Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the
discharge herein directed shall be effected when such other cause or reason ceases to
exist. No costs. So ordered.
217
G.R. No. L-30026 January 30, 1971
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO
PADUA and PATERNO PALMARES, Petitioners, vs. THE DIRECTOR OF THE
BUREAU OF PRISONS, Respondent.
FERNANDO, J.:
Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number,
for their release from imprisonment. Meted out life terms for the complex crime of
rebellion with murder and other crimes, they would invoke the People v. Hernandez1
doctrine, negating the existence of such an offense, a ruling that unfortunately for them
was not handed down until after their convictions had become final. Nor is this the first
instance, a proceeding of this character was instituted, as in Pomeroy v. Director of
Prisons,2 likewise a petition for habeas corpus, a similar question was presented. The
answer given was in the negative. Petitioners plead for a new look on the matter. They
would premise their stand on the denial of equal protection if their plea would not be
granted. Moreover they did invoke the codal provision that judicial decisions shall form
part of the legal system of the Philippines,3 necessarily resulting in the conclusion that
the Hernandez decision once promulgated calls for a retroactive effect under the
explicit mandate of the Revised Penal Code as to penal laws having such character
even if at the time of their application a final sentence has been rendered "and the
convict is serving the same."4 These arguments carry considerable persuasion.
Accordingly we find for petitioners, without going so far as to overrule Pomeroy.
Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to
suffer reclusion perpetua for the complex crime of rebellion with multiple murder,
robbery, arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and
Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with multiple
murder and other offenses, and were similarly made to suffer the same penalty in
decisions rendered, as to the first two, on March 8, 1954 and, as to the third, on
December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for the
complex crime of rebellion with multiple murder and other offenses and on January 12,
1954 penalized with reclusion perpetua. Each of the petitioners has been since then
imprisoned by virtue of the above convictions. Each of them has served more than 13
years.5
Subsequently, in People v. Hernandez, 6 as above noted, this Court ruled that the
information against the accused in that case for rebellion complexed with murder,
arson and robbery was not warranted under Article 134 of the Revised Penal Code,
there being no such complex offense.7 In the recently-decided case of People vs.
Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the plea of
the Solicitor General for the abandonment of such doctrine. It is the contention of each
of the petitioners that he has served, in the light of the above, more than the maximum
penalty that could have been imposed upon him. He is thus entitled to freedom, his
continued detention being illegal.9
The fear that the Pomeroy ruling stands as an obstacle to their release on a
habeas corpus proceeding prompted petitioners, as had been mentioned, to ask that it
be appraised anew and, if necessary, discarded. We can resolve the present petition
without doing so. The plea there made was unconvincing, there being a failure to
invoke the contentions now pressed vigorously by their counsel, Attorney Jose W.
Diokno, as to the existence of a denial of a constitutional right that would suffice to
raise a serious jurisdictional question and the retroactive effect to be given a judicial
decision favorable to one already sentenced to a final judgment under Art. 22 of the
Revised Penal Code. To repeat, these two grounds carry weight. We have to grant this
petition.
1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus
under the circumstances disclosed. Its latitudinarian scope to assure that illegality of
restraint and detention be avoided is one of the truisms of the law. It is not known as
the writ of liberty for nothing. The writ imposes on judges the grave responsibility of
ascertaining whether there is any legal justification for a deprivation of physical
freedom. Unless there be such a showing, the confinement must thereby cease. If
there be a valid sentence it cannot, even for a moment, be extended beyond the
period provided for by law. Any deviation from the legal norms call for the termination
of the imprisonment.
Rightly then could Chafee refer to the writ as "the most important human rights
provision" in the fundamental law. 10 Nor is such praise unique. Cooley spoke of it as
"one of the principal safeguards to personal liberty." 11 For Willoughby, it is "the
greatest of the safeguards erected by the civil law against arbitrary and illegal
imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick
echoed a similar sentiment, referring to it as "one of the most important bulwarks of
liberty." 13 Fraenkel made it unanimous, for to him, "without it much else would be of
no avail." 14 Thereby the rule of law is assured.
A full awareness of the potentialities of the writ of habeas corpus in the defense of
liberty coupled with its limitations may be detected in the opinions of former Chief
Justices Arellano, 15 Avancea, 16 Abad Santos, 17 Paras, 18 Bengzon, 19 and the
present Chief Justice. 20 It fell to Justice Malcolm's lot, however to emphasize quite a
few times the breadth of its amplitude and of its reach. In Villavicencio v. Lukban, 21
the remedy came in handy to challenge the validity of the order of the then respondent
Mayor of Manila who, for the best of reasons but without legal justification, ordered the
transportation of more than 150 inmates of houses of ill-repute to Davao. After
referring to the writ of habeas corpus as having been devised and existing "as a
speedy and effectual remedy to relieve persons from unlawful restraint" the opinion of
Justice Malcolm continued: "The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint
which will preclude freedom of action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus petitions even if
presented in pleadings on their face devoid of merit was demonstrated in Ganaway v.
Quilen, 23 where this Court, again through Justice Malcolm, stated: "As standing alone
the petition for habeas corpus was fatally defective in its allegations, this court, on its
motion, ordered before it the record of the lower court in the case entitled Thomas
Casey, et al. v. George Ganaway." 24 It is to Justice Malcolm likewise in Conde v.
Rivera, 25 to whom is traceable the doctrine, one that broadens the field of the
operation of the writ, that a disregard of the constitutional right to speedy trial ousts the
court of jurisdiction and entitles the accused if "restrained of his liberty, by habeas
corpus to obtain his freedom." 26
218
 So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the
matter thus: "The writ of habeas corpus is a high prerogative writ, known to the
common law, the great object of which is the liberation of those who may be
imprisoned without sufficient cause." Then there is this affirmation from an 1869
decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has
been for centuries esteemed the best and only sufficient defense of personal
freedom." The passing of the years has only served to confirm its primacy as a
weapon on in the cause of liberty. Only the other year, Justice Fortas spoke for the
United States Supreme Court thus: "The writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state
action. ... The scope and flexibility of the writ - its capacity to reach all manner of illegal
detention - its ability to cut through barriers of form and procedural mazes - have
always been emphasized and jealously guarded by courts and lawmakers. The very
nature of the writ demands that it be administered with the initiative and flexibility
essential to insure that miscarriages of justice within its reach are surfaced and
corrected." 29 Justice Fortas explicitly made reference to Blackstone, who spoke of it
as "the great and efficacious writ, in all manner of illegal confinement." Implicit in his
just estimate of its pre-eminent role is his adoption of Holmes' famous dissent in Frank
v. Mangum: 30 "But habeas corpus cuts through all forms and goes to the very tissue
of the structure."
2. Where, however, the detention complained of finds its origin in what has been
judicially ordained, the range of inquiry in a habeas corpus proceeding is considerably
narrowed. For if "the person alleged to be restrained of his liberty is in the custody of
an officer under process issued by a court or judge or by virtue of a judgment or order
of a court of record, and that the court or judge had jurisdiction to issue the process,
render the judgment, or make the order," the writ does not lie. 31 That principle dates
back to 1902, 32 when this Court announced that habeas corpus was unavailing
where the person detained was in the custody of an officer under process issued by a
court or magistrate. This is understandable, as during the time the Philippines was
under American rule, there was necessarily an adherence to authoritative doctrines of
constitutional law there followed.
One such principle is the requirement that there be a finding of jurisdictional defect.
As summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only
ground on which this court, or any court, without some special statute authorizing it,
will give relief on habeas corpus to a prisoner under conviction and sentence of
another court is the want of jurisdiction in such court over the person or the cause, or
some other matter rendering its proceedings void." 33
There is the fundamental exception though, that must ever be kept in mind. Once a
deprivation of a constitutional right is shown to exist, the court that rendered the
judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate
remedy to assail the legality of the detention. 34
3. Petitioners precisely assert a deprivation of a constitutional right, namely, the
denial of equal protection. According to their petition: "In the case at bar, the petitioners
were convicted by Courts of First Instance for the very same rebellion for which
Hernandez, Geronimo, and others were convicted. The law under which they were
convicted is the very same law under which the latter were convicted. It had not and
has not been changed. For the same crime, committed under the same law, how can
we, in conscience, allow petitioners to suffer life imprisonment, while others can suffer
only prision mayor?" 35
They would thus stress that, contrary to the mandate of equal protection, people
similarly situated were not similarly dealt with. What is required under this required
constitutional guarantee is the uniform operation of legal norms so that all persons
under similar circumstances would be accorded the same treatment both in the
privileges conferred and the liabilities imposed. As was noted in a recent decision:
"Favoritism and undue preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under circumstances, which if
not identical are analogous. If law be looked upon in terms of burden or charges, those
that fall within a class should be treated in the same fashion, whatever restrictions cast
on some in the group equally binding on the rest." 36
The argument of petitioners thus possesses a persuasive ring. The continued
incarceration after the twelve-year period when such is the maximum length of
imprisonment in accordance with our controlling doctrine, when others similarly
convicted have been freed, is fraught with implications at war with equal protection.
That is not to give it life. On the contrary, it would render it nugatory. Otherwise, what
would happen is that for an identical offense, the only distinction lying in the finality of
the conviction of one being before the Hernandez ruling and the other after, a person
duly sentenced for the same crime would be made to suffer different penalties.
Moreover, as noted in the petition before us, after our ruling in People v. Lava,
petitioners who were mere followers would be made to languish in jail for perhaps the
rest of their natural lives when the leaders had been duly considered as having paid
their penalty to society, and freed. Such a deplorable result is to be avoided.
4. Petitioners likewise, as was made mention at the outset, would rely on Article 22
of the Revised Penal Code which requires that penal judgment be given a retroactive
effect. In support of their contention, petitioners cite U.S. v. Macasaet, 37 U.S.
vs.Parrone, 38 U.S. v. Almencion, 39 People v. Moran, 40 and People v. Parel. 41
While reference in the above provision is made not to judicial decisions but to
legislative acts, petitioners entertain the view that it would be merely an exaltation of
the literal to deny its application to a case like the present. Such a belief has a firmer
foundation. As was previously noted, the Civil Code provides that judicial decisions
applying or interpreting the Constitution, as well as legislation, form part of our legal
system. Petitioners would even find support in the well-known dictum of Bishop
Hoadley:
"Whoever hath an absolute authority to interpret any written or spoken laws, it is he
who is truly the law-giver to all intents and purposes, and not the person who first
thought or spoke them." It is to be admitted that constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as
the jurist John Chipman Gray, were much impressed with the truth and the soundness
of the above observations. We do not have to go that far though. Enough for present
purposes that both the Civil Code and the Revised Penal Code allow, if they do not call
for, a retroactive application.
It being undeniable that if the Hernandez ruling were to be given a retroactive effect
petitioners had served the full term for which they could have been legally committed,
is habeas corpus the appropriate remedy? The answer cannot be in doubt. As far back
as 1910 the prevailing doctrine was announced in Cruz v. Director of Prisons. 45 Thus:
219
"The courts uniformly hold that where a sentence imposes punishment in excess of the
power of the court to impose, such sentence is void as to the excess, and some of the
courts hold that the sentence is void in toto; but the weight of authority sustains the
proposition that such a sentence is void only as to the excess imposed in case the
parts are separable, the rule being that the petitioner is not entitled to his discharge on
a writ of habeas corpus unless he has served out so much of the sentence as was
valid." 46 There is a reiteration of such a principle in Director v. Director of Prisons 47
where it was explicitly announced by this Court "that the only means of giving
retroactive effect to a penal provision favorable to the accused ... is the writ of habeas
corpus." 48 While the above decision speaks of a trial judge losing jurisdiction over the
case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation
that it is the only means of benefiting the accused by the retroactive character of a
favorable decision holds true. Petitioners clearly have thus successfully sustained the
burden of justifying their release.
WHEREFORE, the petition for habeas corpus is granted, and it is ordered that
petitioners be forthwith set at liberty.
[G.R. No. L-79173. December 1, 1987.]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROLANDO N.
ABADILLA, SUSAN S. ABADILLA, in her own behalf and in behalf of the minors
JUNE ELIZABETH, ROLANDO, JR., DAPHINE JENNIFER, MA. THERESA, ANNA
ROSANNA, VINCENT MARCUS and BART JOSEPH, all surnamed ABADILLA,
Petitioners, v. General FIDEL V. RAMOS, Chief of Staff, AFP; Major General
RENATO DE VILLA, Commanding General, Philippine Constabulary & Vice-Chief
of Staff, AFP; and Brigadier General ALEXANDER AGUIRRE, Commanding
General, CAPCOM, PC, Respondents.
GANCAYCO, J.:
The validity of the detention of an individual is challenged in this Petition for habeas
corpus. The petitioners are the spouse and minor children of the detainee while the
respondents are ranking officers of the Armed Forces of the Philippines (AFP).
The record of the case discloses that on January 27, 1987, a group of officers and
enlisted men of the AFP seized control of the radio-television broadcasting facilities of
the Republic Broadcasting System (GMA-Channel 7) located in Quezon City,
ostensibly for the purpose of toppling the existing constitutional government. While the
takeover might have been a prelude to similar operations throughout the national
capital, it did not succeed. On January 29, 1987, the mutineers surrendered to the
military authorities and the possession of the facility was restored to the owners and
managers thereof. Soon thereafter, the military authorities conducted an investigation
of the matter.
On April 18, 1987, a group of enlisted men staged a mutiny inside the Fort
Bonifacio military facility in Makati, Metropolitan Manila. The mutiny, dubbed as "The
Black Saturday Revolt," 1 did not succeed either. After the incident, the military
authorities also conducted an investigation.
The first investigation was concluded on March 12, 1987. The investigation
disclosed that Colonel Rolando N. Abadilla of the Philippine Constabulary (PC) of the
AFP was one of the leaders of the unsuccessful takeover of the GMA radio-television
facilities. 2 The Board of Officers investigating the matter recommended that the case
of Colonel Abadilla be endorsed for pre-trial investigation and that the appropriate
charges be filed against him for violation of Article of War 67 (Mutiny or Sedition 1.
Article of War 94 (Various Crimes) in relation to Article 139 of the Revised Penal Code
and Section 1 of Presidential Decree No. 1866, and such other offenses that may be
warranted by the evidence. Accordingly, a charge sheet was prepared against the
Colonel.
The investigation conducted on "The Black Saturday Revolt" ended on May 27,
1987. It was found at said investigation that Colonel Abadilla was also involved in the
mutiny. The Board of Officers conducting the investigation also recommended that the
case be endorsed for pre-trial investigation and that the appropriate charges be filed
against the Colonel. 3 The Colonel was likewise charged, accordingly.
Colonel Abadilla was at large when both investigations were conducted.
On May 4, 1987 or some two weeks before the second investigation was
concluded, herein respondent Major General Renato De Villa, Commanding General
220
of the PC and Vice Chief of Staff of the AFP issued an Order for the arrest and
confinement of Colonel Abadilla. 4
On May 21, 1987, respondent AFP Chief of Staff General Fidel V. Ramos issued
General Orders No. 342 dropping Colonel Abadilla from the rolls of regular officers of
the AFP. 5 The pertinent portions of the said General Orders are as follows
"DROPPING FROM THE ROLLS OF REGULAR OFFICERS
"The names of the following officers are dropped from the rolls of Regular Officers,
Armed Forces of the Philippines for cause effective as of 9 May 1987 pursuant to
Article of War 117. (Authority: Letter from the President, dated 9 May 1987).
"BRIGADIER GENERAL JOSE MARIA CARLOS ZUMEL . . .
"COLONEL ROLANDO N ABADILLA 0-4937 PHILIPPINE CONSTABULARY
(GENERAL STAFF CORPS)
"MAJOR REYNALDO C CABAUATAN . . .
"BY ORDER OF THE SECRETARY OF NATIONAL DEFENSE:
"xxx"
On July 7, 1987, the Assistant City Fiscal of Quezon City filed an Information for
Slight Physical Injuries with the Metropolitan Trial Court of Metropolitan Manila in
Quezon City against Colonel Abadilla. 6 The case was docketed as Criminal Case No.
0237558.
On July 27, 1987, a combined element of the Philippine Army and Philippine
Constabulary arrested Colonel Abadilla. 7 He was detained first in Camp Crame in
Quezon City and later, up to the present, in Fort Bonifacio in Makati.
On July 30, 1987, another Information, this time for violation of Presidential Decree
No. 1866 (Illegal Possession of Firearms and Ammunition) was filed by the Assistant
City Fiscal of Quezon City against Colonel Abadilla. 8 The case was assigned to
Branch 104 of the Regional Trial Court in Quezon City and was docketed as Criminal
Case No. Q-53382.
On the same date, July 30, 1987, Mrs. Susan S. Abadilla the spouse of Colonel
Abadilla together with their minor children June Elizabeth, Rolando, Jr. Daphine
Jennifer, Ma. Theresa, Anna Rosanna, Vincent Marcus and Bart Joseph, went to this
Court and filed the instant Petition for habeas corpus, challenging the validity of the
detention of Colonel Abadilla. 9
The main arguments in the Petition are as follows
(1) When Colonel Abadilla was dropped from the rolls of officers effective May 9,
1987, he became a civilian and as such, the order for his arrest and confinement is null
and void because he was no longer subject to military law;
(2) His detention is illegal because he is not charged with any criminal offense,
either before a civil court or a court-martial;
(3) Even assuming that the order for the arrest and confinement of Colonel Abadilla
was valid at the initial stage, the said order became functus officio and/or moot and
academic when the Colonel was dropped from the rolls of officers;
(4) Even assuming that Colonel Abadilla is subject to military law, his detention
remains illegal because under Article of War 70, a person subject to military law can be
detained only if he is charged with a crime or a serious offense under the Articles of
War.
In the meantime, the Regional Trial Court, with Judge Maximiano O. Asuncion
presiding therein, granted the Motion to Quash and the Supplement thereto filed by the
counsel of Colonel Abadilla. Accordingly, the Information in Criminal Case No,
Q-53382 was dismissed by the trial court. 10
In a resolution dated August 4, 1987, this Court resolved to issue the writ of habeas
corpus. The respondents were required to make a return of the writ on August 10,
1987. 11
On August 10, 1987, the respondents, represented by the Office of the Solicitor
General (OSG), submitted the Return of the writ. 12 The main arguments in the Return
are as follows
(1) In the event that proceedings with a view to military trial are commenced
against a person subject to military law before the termination of military service,
military jurisdiction will fully attach on the said person.;
(2) The confinement of Colonel Abadilla as a person subject to military jurisdiction
is authorized by Article of War 70; and
(3) The continued confinement of Colonel Abadilla in Fort Bonifacio is imperative
and justified on account of the criminal case/s filed against him by both the military and
civil authorities.
As instructed by this Court, the petitioners submitted their Reply to the Return of
the writ on September 7, 1987. 13 The main arguments in the Reply are as follows
(1) The pendency of a case in the civil courts has no relevance to the issue of
military jurisdiction over Colonel Abadilla. This view notwithstanding, Criminal Case
No. Q-53382 filed against Colonel Abadilla has been dismissed by the trial court. The
pendency of Criminal Case No. 0237558 filed against the Colonel does not warrant his
continued confinement inasmuch as the Colonel has posted bail for his provisional
liberty;
(2) Colonel Abadilla is not in the active service of the AFP nor is he a person under
sentence adjudged by courts-martial. As such, he does not fall under the category of a
person subject to military law as defined by Article of War 2;
(3) An officer dropped from the rolls by order of the President is fully separated
from the service and is no longer subject to military law (Citing Gloria, Philippine
Military Law Annotated).;
(4) Under Section 10 of the Manual for Courts-Martial, Philippine Army, court-
martial jurisdiction over officers in the military service of the Philippines ceases on
discharge or separation from the service. The case of Colonel Abadilla does not fall
under any of the exceptions to this rule. This observation has been upheld in Martin v.
Ver, 123 SCRA 745 (1983);
(5) The pronouncement of the United States Supreme Court in Toth v. Quarles, 350
U.S. 11 (1955), cited in Olaguer v. Military Commission No. 34, G.R. Nos. 54558 and
69882, May 22, 1987, supports the stand taken by the herein petitioners; and
221
 (6) Under the provisions of Presidential Decree No. 1850, as amended by
Presidential Decree No. 1952, court-martial jurisdiction over the person of accused
military personnel cannot be exercised if they are already separated from the active
service, provided that jurisdiction has not attached beforehand unless otherwise
provided by law.
On September 9, 1987, the petitioners submitted their Traverse to the Return of the
writ. 14 It is contended therein that, contrary to the view of the Solicitor General,
jurisdiction over a person is acquired not by the mere filing of a charge or information,
or by the commencement of an investigation, but by the arrest of the defendant. The
petitioners stress that inasmuch as Colonel Abadilla was arrested after he had become
a civilian, the charge sheets prepared against him by the military authorities are null
and void for lack of jurisdiction over the person of the Colonel.
On September 24, 1987, the petitioners submitted their Additional Traverse
together with a Motion to Decide the Petition. 15 On the issue of military jurisdiction,
and in support of their contentions, they cite the treatise of Colonel William Winthrop
entitled Military Law and Precedents. 16
Inasmuch as the parties herein had already presented their respective arguments,
the case was, therefore, deemed submitted for deliberation.
The sole issue in habeas corpus proceedings is the legality of the detention. 17
Therefore, the issue that must be resolved by this Court is this: Is the detention of
Colonel Abadilla illegal? The resolution of this issue will, of course, relate to the
jurisdiction of the military authorities over the person of Colonel Abadilla.
I.
We shall first resolve the problem of jurisdiction.
In Olaguer v. Military Commission No. 34, 18 this Court held that a military
commission or tribunal cannot try and exercise jurisdiction over civilians for offenses
allegedly committed by them as long as the civil courts are open and functioning, and
that any judgment rendered by such body relating to a civilian is null and void for lack
of jurisdiction on the part of the military tribunal concerned. For the same reasons, the
doctrine announced in Aquino, Jr. v. Military Commission No. 2 19 and all decided
cases affirming the same, in so far as they are inconsistent with the Olaguer
pronouncement, were deemed abandoned. There is no doubt, therefore, that military
authorities cannot try civilians.
The petitioners contend that the Olaguer doctrine applies to Colonel Abadilla on the
ground that he had become a civilian since May 9, 1987 when he was dropped from
the rolls of officers of the AFP. They argue that on account of his civilian status,
Colonel Abadilla is no longer subject to military law. In support of their arguments, the
petitioners cite the Articles of War, 20 the Manual for Courts-Martial of the AFP, 21
Presidential Decree No. 1850, as amended, as well as the dissertations on military law
of Colonel William Winthrop 22 and Colonel Claro Gloria. 23 They likewise invoke the
pronouncement of this Court in Martin v. Ver 24 and that of the Supreme Court of the
United States in Toth v. Quarles.25:red
On the other hand, the Solicitor General contends that military jurisdiction had fully
attached on Colonel Abadilla inasmuch as proceedings were initiated against him
before the termination of his service in the military.
We agree.
As early as March, 1987, months before Colonel Abadilla was dropped from the
rolls of officers, the military authorities began the institution of proceedings against
him. As of that time, he was certainly subject to military law. He was under
investigation for his alleged participation in the unsuccessful mutinies when he was an
officer of the AFP. As a military officer, it was incumbent upon him to appear before his
superior officers conducting the investigation even for the purpose of clearing his
name. He did not do so. His superiors could not confine him during the period of
investigation because as stated earlier, he was at large. This disregard for military duty
and responsibility may have prompted his superiors to cause him to be dropped from
the rolls of officers.
It is clear that from the very start of this controversy, the military authorities
intended to try Colonel Abadilla as a person subject to military law. This can be
gleaned from the charge sheets prepared against him.chanrobles.com : virtual law
library
The fact that Colonel Abadilla was dropped from the rolls of officers cannot and
should not lead to the conclusion that he is now beyond the jurisdiction of the military
authorities. If such a conclusion were to prevail, his very own refusal to clear his name
and protect his honor before his superior officers in the manner prescribed for and
expected from a ranking military officer would be his shield against prosecution in the
first place. His refusal to report for duty or to surrender when ordered arrested, which
led to his name being dropped from the roll of regular officers of the military, cannot
thereby render him beyond the jurisdiction of the military courts for offenses he
committed while still in the military service. This Court cannot countenance such an
absurd situation. Established principles in remedial law call for application.
The military authorities had jurisdiction over the person of Colonel Abadilla at the
time of the alleged offenses. This jurisdiction having been vested in the military
authorities, it is retained up to the end of the proceedings against Colonel Abadilla.
Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of
the parties but continues until the case is terminated. 26
The petitioners stress that jurisdiction over a person is acquired not by the mere
filing of a charge or an information, or by the commencement of an investigation, but
by the arrest of the defendant. They maintain that the Colonel was arrested when he
was already a civilian.
The argument is untenable.
The rule that jurisdiction over a person is acquired by his arrest applies only to
criminal proceedings instituted before the regular courts. It does not apply to
proceedings under military law. At the time the military investigations were
commenced, Colonel Abadilla was an officer of the AFP subject to military law. As
such, the military authorities had jurisdiction over his person pursuant to Article of War
2 and Section 8 of the Manual for Courts-Martial, AFP, which provide as follows
222
 "Art. 2. Persons Subject to Military Law. The following persons are subject to
these articles and shall be understood as included in the term `any person subject to
military law or persons subject to military law, whenever used in these articles:
"(a) All officers and soldiers in the active service of the Armed Forces of the
Philippines or of the Philippine Constabulary; . . .;
". . ." and
8. COURTS-MARTIAL Jurisdiction in general Persons. The following
persons are subject to military law:
"(a) All officers and soldiers in the active service of the Armed Forces of the
Philippine Constabulary; . . .;
"xxx" These observations notwithstanding, We have gone through the treatise of Colonel
As mentioned earlier, his earlier arrest could not be effected because he was at
large. The initial stages of the investigations had against him before his arrest were,
therefore, not improper.
As a whole, the authorities cited and relied upon by the petitioners do not
satisfactorily support their contentions.
Article of War 2 enumerates who are subject to military law. In March, 1987,
Colonel Abadilla was a military officer. Under this Article, he was subject to military law.
Section 10 of the Manual for Courts-Martial, AFP, which discusses court-martial
jurisdiction in general, states the general rule to be:
"The general rule is that court-martial jurisdiction over officers, cadets, soldiers,
and others in the military service of the Philippines ceases on discharge or other
separation from such service, and that jurisdiction as to an offense committed during a
period of service thus terminated is not revived by a reentry into the military service."
Attention is called to the exception mentioned in the last sentence of the Section, to
wit
"So also, where a dishonorably discharged general prisoner is tried for an offense
committed while a soldier and prior to his dishonorable discharge, such discharge
does not terminate his amenability to trial for the offense."
This exception applies to the case of Colonel Abadilla inasmuch as he is at present
confined in Fort Bonifacio upon the orders of his superior officers, and his having been
dropped from the rolls of officers amounts to a dishonorable discharge.
Section 1 of Presidential Decree No. 1860, as amended, even acknowledges
instances where military jurisdiction fully attaches on an individual even after he shall
have been separated from active service, to
wit
"SECTION 1. Court martial jurisdiction over Integrated National Police and
Members of the Armed Forces. . . .;
"(b) all persons subject to military law under Article 2 of the aforecited Articles of
War who commit any crime or offense shall be exclusively tried by courts-martial or
their case disposed of under the said Articles of War; Provided, that in either of the
aforementioned situations, the case shall be disposed of or tried by the proper civil or
judicial authorities when court-martial jurisdiction over the offense has prescribed
under Article 38 of Commonwealth Act No. 408, as amended, or court-martial
jurisdiction over the person of the accused military or Integrated National Police can no
longer be exercised by virtue of their separation from the active service without
jurisdiction having duly attached beforehand unless otherwise provided by
law; . . ." (Emphasis supplied.)
The dissertations of Colonels Winthrop and Gloria are, at most, persuasive
authorities. Indeed, this Court has cited the treatise of Colonel Winthrop in at least
three cases 27 on account of the scholarly discussions contained therein. Works of
this nature provide insight and information which have been of tremendous help to this
Court in many judicial controversies. Regardless of their great value, they cannot
prevail over opposing but nonetheless settled doctrines in Philippine jurisprudence.
Winthrop and We find the following passage which goes against the contention of the
petitioners, viz
"3. Offenders in general Attaching of jurisdiction. It has further been held, and is
now settled law, in regard to military offenders in general, that if the military jurisdiction
has once duly attached to them previous to the date of the termination of their legal
period of service, they may he brought to trial by court-martial after that date, their
discharge being meanwhile withheld. This principle has mostly been applied to cases
where the offense was committed just prior to the end of the term. In such cases the
interests of discipline clearly forbid that the offender should go unpunished. It is held
therefore that if before the day on which his service legally terminates and his right to a
discharge is complete, proceedings with a view to trial are commenced against him
as by arrest or the service of charges, the military jurisdiction will fully attach and
once attached may be continued by a trial by court-martial ordered and held after the
end of the term of the enlistment of the accused. . . ." 28
The case of Martin v. Ver 29 cited by the petitioners is not in point. In Martin, this
Court took the opportunity to discuss the general rule that "court-martial jurisdiction
over persons in the military service of the Philippines ceases upon discharge or
separation from such service" and an exception to the general rule recited in Article of
War 95 regarding frauds against the Government.
The case of Toth v. Quarles 30 decided by the Supreme Court of the United States
is also inapplicable.
Toth involves a former serviceman named Audrey M. Toth who, five months after
his honorable discharge from the U.S. Air Force, was arrested by military authorities on
a charge of murder allegedly committed in Korea when he was still an airman. A
divided Supreme Court 31 held that Congress has no power to subject a discharged
serviceman to trial by court-martial for offenses committed by him while in the military
service and so to deprive him of the constitutional safeguards protecting persons
accused of crime in a federal court.
The Toth ruling is inapplicable to the instant case for two reasons.
First Toth was honorably discharged from the military service. The arrangement
was voluntary on the part of the serviceman. There was an ostensible intention on his
part to live the life of a civilian again. Colonel Abadilla was not honorably discharged.
On the contrary, he was dropped from the rolls of regular officers of the AFP. This
arrangement did not have his express consent. In fact, he was at large at that time.
223
 Second The proceedings against Toth began after his honorable discharge from
the service. The proceedings against Colonel Abadilla were commenced when he was
still a regular officer of the AFP.
Moreover, the doctrine in Toth is not a unanimous pronouncement as there were
some persuasive dissenting views.
Although Toth was cited in Olaguer v. Military Commission No. 34, 32 the citation
should not be construed as a sweeping endorsement of the entire doctrine therein.
Toth was cited in Olaguer only for the purpose of emphasizing that military
commissions or tribunals cannot try civilians. In Olaguer, this Court relied on the
doctrine announced in Ex-parte Milligan, 33 and not the one in Toth in arriving at the
Decision of the Court.chanrobles virtual lawlibrary
Another point should be mentioned regarding the matter of jurisdiction. We agree
with the respondents in their assertion that the pendency of a case in the civil courts
has no relevance to the problem of military jurisdiction over Colonel Abadilla. The
argument is well-taken.
However, when he wavers and fails to live up to the highest standard of fidelity to
his country and people, when he defies authority and discipline, when he commits
offenses or when he turns against the very people and government he is sworn to
protect, he becomes an outlaw and a disgrace to his uniform. The state has a right to
hold him to account for his transgressions and to see to it that he can not use the
awesome powers of his status to jeopardize the security and peace of the
citizenry.chanrobles.com::red
WHEREFORE, in view of the foregoing, the instant Petition for habeas corpus is
hereby DISMISSED for lack of merit. We make no pronouncement as to costs.
SO ORDERED.
Teehankee, (C.J.), Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,
Paras, Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

II.
The matter of jurisdiction having been settled, We now proceed to discuss the
remaining contentions of the petitioners.
The petitioners argue that even if it were to be assumed that Colonel Abadilla is
subject to military law, his confinement remains illegal because under Article of War
70, a person subject to military law can be detained only if he is charged with a crime
or a serious offense under the Articles of War.
The record of the case discloses that Colonel Abadilla has been charged by the
military authorities for violation of Article of War 67 (Mutiny or Sedition) which is a
serious offense, and the corresponding charge sheets have been prepared against
him.
The important issue in this Petition has been resolved - the detention of Colonel
Abadilla under the circumstances obtaining in this case is not illegal. For this reason,
the instant Petition for habeas corpus should be dismissed for lack of merit.
In the light of the foregoing discussion, the motion of petitioners to hold respondent
General Ramos in contempt of court for approving the filing of court martial
proceedings against Colonel Abadilla during the pendency of this case should be and
is hereby denied. The Court has not issued a restraining order enjoining such
proceedings. In fact We now find that the court martial proceedings may proceed
inasmuch as the military authorities have jurisdiction over Colonel Abadilla in the
above-stated cases.
One last word. The man in uniform belongs to the elite in public service. His
eminent credential is his absolute loyalty to the Constitution, the flag, his country and
his people. He is the guardian against external and internal aggression.
He is a man of honor and courage. He is a gentleman. He is given arms to insure
his capability as an instrument of peace. When he is drafted in the Philippine
Constabulary he becomes a peace officer, a law enforcer, a law man. Respect for the
law is his article of faith.

224
G.R. No. 122954. February 15, 2000
NORBERTO FERIA Y PACQUING, Petitioner, vs. THE COURT OF APPEALS, THE
DIRECTOR OF THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO
MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA CITY JAIL), THE
PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA, and
THE CITY PROSECUTOR, CITY OF MANILA, Respondents.
QUISUMBING, J.:
The mere loss or destruction of the records of a criminal case subsequent to
conviction of the accused will not render the judgment of conviction void, nor will it
warrant the release of the convict by virtue of a writ of habeas corpus. The proper
remedy is the reconstitution of judicial records which is as much a duty of the
prosecution as of the defense.
Subject of this petition for review on certiorari are (1) the Decision dated April 28,
1995, of the Eighth Division of the Court of Appeals, which affirmed the dismissal of
the petition for habeas corpus filed by petitioner, and (2) the Resolution of the Court of
Appeals dated December 1, 1995, which denied the Motion for Reconsideration. As
hereafter elucidated, we sustain the judgment of respondent appellate court.
Based on the available records and the admissions of the parties, the antecedents
of the present petition are as follows:
Petitioner Norberto Feria y Pacquing has been under detention since May 21,
1981, up to present1 by reason of his conviction of the crime of Robbery with
Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila, Branch
2, for the jeepney hold-up and killing of United States Peace Corps Volunteer Margaret
Viviene Carmona.
Some twelve (12) years later, or on June 9, 1993, petitioner sought to be
transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa City,2
but the Jail Warden of the Manila City Jail informed the Presiding Judge of the RTC-
Manila, Branch 2, that the transfer cannot be effected without the submission of the
requirements, namely, the Commitment Order or Mittimus, Decision, and Information.3
It was then discovered that the entire records of the case, including the copy of the
judgment, were missing. In response to the inquiries made by counsel of petitioner,
both the Office of the City Prosecutor of Manila and the Clerk of Court of Regional Trial
Court of Manila, Branch 2 attested to the fact that the records of Criminal Case No.
60677 could not be found in their respective offices. Upon further inquiries, the entire
records appear to have been lost or destroyed in the fire which occurred at the second
and third floor of the Manila City Hall on November 3, 1986.4
On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas
Corpus[5] with the Supreme Court against the Jail Warden of the Manila City Jail, the
Presiding Judge of Branch 2, Regional Trial Court of Manila, and the City Prosecutor of
Manila, praying for his discharge from confinement on the ground that his continued
detention without any valid judgment is illegal and violative of his constitutional right to
due process.
In its Resolution dated October 10, 1994,6 the Second Division of this Court
resolved -
" x x x (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge
of the Regional Trial Court of Manila to conduct an immediate RAFFLE of this case
among the incumbent judges thereof; and (c) to REQUIRE [1] the Judge to whom this
case is raffled to SET the case for HEARING on Thursday, October 13, 1994 at 8:30
A.M., try and decide the same on the merits and thereafter FURNISH this Court with a
copy of his decision thereon; [2] the respondents to make a RETURN of the Writ on or
before the close of office hours on Wednesday, October 12, 1994 and APPEAR
PERSONALLY and PRODUCE the person of Norberto Feria y Pa[c]quing on the
aforesaid date and time of hearing to the Judge to whom this case is raffled, and [3]
the Director General, Philippine National Police, through his duly authorized
representative(s) to SERVE the Writ and Petition, and make a RETURN thereof as
provided by law and, specifically, his duly authorized representative(s) to APPEAR
PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the
aforesaid date and time of hearing."
The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which
on November 15, 1994, after hearing, issued an Order7 dismissing the case on the
ground that the mere loss of the records of the case does not invalidate the judgment
or commitment nor authorize the release of the petitioner, and that the proper remedy
would be reconstitution of the records of the case which should be filed with the court
which rendered the decision.
Petitioner duly appealed said Order to the Court of Appeals, which on April 28,
1995, rendered the assailed Decision8 affirming the decision of the trial court with the
modification that "in the interest of orderly administration of justice" and "under the
peculiar facts of the case" petitioner may be transferred to the Bureau of Corrections in
Muntinlupa City without submission of the requirements (Mittimus, Decision and
Information) but without prejudice to the reconstitution of the original records.
The Motion for Reconsideration of the aforesaid Order having been denied for lack
of merit,9 petitioner is now before us on certiorari, assigning the following errors of law:
10
I. WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS
CASE, WHERE THE RECORDS OF CONVICTION WERE LOST, THE PETITIONERS
CONTINUED INCARCERATION IS JUSTIFIED UNDER THE LAW.
COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS
RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANTS PETITION FOR
HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A JUDGMENT OR A
SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS
FOR HIS INCARCERATION.
II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS LOST/
DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT AND ITS ORGANS,
WHO ARE IN CUSTODY OF SUCH, OR BY THE PRISONER, WHOSE LIBERTY IS
RESTRAINED.
Petitioner argues that his detention is illegal because there exists no copy of a valid
judgment as required by Sections 1 and 2 of Rule 120 of the Rules of Court,11 and
that the evidence considered by the trial court and Court of Appeals in the habeas
corpus proceedings did not establish the contents of such judgment. Petitioner further
contends that our ruling in Gunabe v. Director of Prisons, 77 Phil. 993, 995 (1947), that
"reconstitution is as much the duty of the prosecution as of the defense" has been
225
modified or abandoned in the subsequent case of Ordonez v. Director of Prisons, 235
SCRA 152, 155 (1994), wherein we held that "[i]t is not the fault of the prisoners that
the records cannot now be found. If anyone is to be blamed, it surely cannot be the
prisoners, who were not the custodians of those records."
In its Comment,12 the Office of the Solicitor General contends that the sole inquiry
in this habeas corpus proceeding is whether or not there is legal basis to detain
petitioner. The OSG maintains that public respondents have more than sufficiently
shown the existence of a legal ground for petitioners continued incarceration, viz., his
conviction by final judgment, and under Section 4 of Rule 102 of the Rules of Court,
the discharge of a person suffering imprisonment under lawful judgment is not
authorized. Petitioners remedy, therefore, is not a petition for habeas corpus but a
proceeding for the reconstitution of judicial records.
The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was
devised and exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom.13 It secures
to a prisoner the right to have the cause of his detention examined and determined by
a court of justice, and to have the issue ascertained as to whether he is held under
lawful authority.14 Consequently, the writ may also be availed of where, as a
consequence of a judicial proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction
to impose the sentence, or (c) an excessive penalty has been imposed, as such
sentence is void as to such excess.15 Petitioners claim is anchored on the first ground
considering, as he claims, that his continued detention, notwithstanding the lack of a
copy of a valid judgment of conviction, is violative of his constitutional right to due
process.
Based on the records and the hearing conducted by the trial court, there is
sufficient evidence on record to establish the fact of conviction of petitioner which
serves as the legal basis for his detention. Petitioner made judicial admissions, both
verbal and written, that he was charged with and convicted of the crime of Robbery
with Homicide, and sentenced to suffer imprisonment "habang buhay".
In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding
that -16
"During the trial and on manifestation and arguments made by the accused, his
learned counsel and Solicitor Alexander G. Gesmundo who appeared for the
respondents, it appears clear and indubitable that:
(A) Petitioner had been charged with Robbery with Homicide in Criminal Case No.
60677, Illegal Possession of Firearm in Criminal Case No. 60678 and Robbery in Band
in Criminal Case No. 60867. ... In Criminal Case No. 60677 (Robbery with Homicide)
the accused admitted in open Court that a decision was read to him in open Court by a
personnel of the respondent Court (RTC Branch II) sentencing him to Life
Imprisonment (Habang buhay)..." (emphasis supplied)
Further, in the Urgent Motion for the Issuance of Commitment Order of the Above
Entitled Criminal Case dated June 8, 1993,17 petitioner himself stated that -
"COMES NOW, the undersigned accused in the above entitled criminal case and
unto this Honorable Court most respectfully move:
1. That in 1981 the accused was charge of (sic) Robbery with Homicide;
2. That after four years of trial, the court found the accused guilty and given a Life
Sentence in a promulgation handed down in 1985; (emphasis supplied)
3. That after the sentence was promulgated, the Presiding Judge told the councel
(sic) that accused has the right to appeal the decision;
4. That whether the de oficio counsel appealed the decision is beyond the accused
comprehension (sic) because the last time he saw the counsel was when the decision
was promulgated.
5. That everytime there is change of Warden at the Manila City Jail attempts were
made to get the Commitment Order so that transfer of the accused to the Bureau of
Corrections can be affected, but all in vain;"
Petitioners declarations as to a relevant fact may be given in evidence against him
under Section 23 of Rule 130 of the Rules of Court. This rule is based upon the
presumption that no man would declare anything against himself, unless such
declaration were true,18 particularly with respect to such grave matter as his
conviction for the crime of Robbery with Homicide. Further, under Section 4 of Rule
129, "[a]n admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be
contradicted only by a showing that it was made through palpable mistake or that no
such admission was made." Petitioner does not claim any mistake nor does he deny
making such admissions.
The records also contain a certified true copy of the Monthly Report dated January
198519 of then Judge Rosalio A. De Leon, attesting to the fact that petitioner was
convicted of the crime of Robbery with Homicide on January 11, 1985. Such Monthly
Report constitutes an entry in official records under Section 44 of Rule 130 of the
Revised Rules on Evidence, which is prima facie evidence of facts therein stated.
Public respondents likewise presented a certified true copy of Peoples Journal
dated January 18, 1985, page 2,20 issued by the National Library, containing a short
news article that petitioner was convicted of the crime of Robbery with Homicide and
was sentenced to "life imprisonment." However, newspaper articles amount to
"hearsay evidence, twice removed"21 and are therefore not only inadmissible but
without any probative value at all whether objected to or not,22 unless offered for a
purpose other than proving the truth of the matter asserted. In this case, the news
article is admissible only as evidence that such publication does exist with the tenor of
the news therein stated.
As a general rule, the burden of proving illegal restraint by the respondent rests on
the petitioner who attacks such restraint. In other words, where the return is not
subject to exception, that is, where it sets forth process which on its face shows good
ground for the detention of the prisoner, it is incumbent on petitioner to allege and
prove new matter that tends to invalidate the apparent effect of such process.23 If the
detention of the prisoner is by reason of lawful public authority, the return is considered
prima facie evidence of the validity of the restraint and the petitioner has the burden of
proof to show that the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of
Court provides:
"SEC. 13. When the return evidence, and when only a plea.If it appears that the
prisoner is in custody under a warrant of commitment in pursuance of law, the return
shall be considered prima facie evidence of the cause of restraint, but if he is
226
restrained of his liberty by any alleged private authority, the return shall be considered
only as a plea of the facts therein set forth, and the party claiming the custody must
prove such facts."
Public respondents having sufficiently shown good ground for the detention,
petitioners release from confinement is not warranted under Section 4 of Rule 102 of
the Rules of Court which provides that -
"Sec. 4. When writ not allowed or discharge authorized. - If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears
after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule
be held to authorize the discharge of a person charged with or convicted of an offense
in the Philippines, or of a person suffering imprisonment under lawful judgment."
are just as important as pending ones, as evidence of rights and obligations finally
adjudicated.29
Petitioner belabors the fact that no initiative was taken by the Government to
reconstitute the missing records of the trial court. We reiterate, however, that
"reconstitution is as much the duty of the prosecution as of the defense."30 Petitioners
invocation of Ordoez v. Director of Prisons, 235 SCRA 152 (1994), is misplaced since
the grant of the petition for habeas corpus therein was premised on the loss of records
prior to the filing of Informations against the prisoners, and therefore "[t]he government
has failed to show that their continued detention is supported by a valid conviction or
by the pendency of charges against them or by any legitimate cause whatsoever." In
this case, the records were lost after petitioner, by his own admission, was already
convicted by the trial court of the offense charged. Further, the same incident which
gave rise to the filing of the Information for Robbery with Homicide also gave rise to
another case for Illegal Possession of Firearm,31 the records of which could be of
assistance in the reconstitution of the present case.

In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was WHEREFORE , the petition is DENIED for lack of merit, and the decision of the
convicted by the trial court of the crime of rape, and was committed to the New Bilibid Court of Appeals is AFFIRMED.
Prison. Pending appeal with the Court of Appeals, the records of the case were, for SO ORDERED.
reasons undisclosed, completely destroyed or lost. Accused then filed a petition for the Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
issuance of the writ of habeas corpus with the Supreme Court. The Court denied the
petition, ruling thus:
"The petition does not make out a case. The Director of Prisons is holding the
prisoner under process issued by a competent court in pursuance of a lawful,
subsisting judgment. The prisoner himself admits the legality of his detention. The
mere loss or destruction of the record of the case does not invalidate the judgment or
the commitment, or authorize the prisoners release."
Note further that, in the present case, there is also no showing that petitioner duly
appealed his conviction of the crime of Robbery with Homicide, hence for all intents
and purposes, such judgment has already become final and executory. When a court
has jurisdiction of the offense charged and of the party who is so charged, its
judgment, order, or decree is not subject to collateral attack by habeas corpus.24 Put
another way, in order that a judgment may be subject to collateral attack by habeas
corpus, it must be void for lack of jurisdiction.25 Thus, petitioners invocation of our
ruling in Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we
granted the writ and ordered the release of the prisoner on the ground that "[i]t does
not appear that the prisoner has been sentenced by any tribunal duly established by a
competent authority during the enemy occupation" and not because there were no
copies of the decision and information. Here, a copy of the mittimus is available. And,
indeed, petitioner does not raise any jurisdictional issue.
The proper remedy in this case is for either petitioner or public respondents to
initiate the reconstitution of the judgment of the case under either Act No. 3110,26 the
general law governing reconstitution of judicial records, or under the inherent power of
courts to reconstitute at any time the records of their finished cases in accordance with
Section 5 (h) of Rule 135 of the Rules of Court.27 Judicial records are subject to
reconstitution without exception, whether they refer to pending cases or finished
cases.28 There is no sense in limiting reconstitution to pending cases; finished cases

227
[G.R. No. 139789. May 12, 2000.]
ERLINDA K. ILUSORIO, Petitioner, v. ERLINDA I. BILDNER and SYLVIA K.
ILUSORIO, JOHN DOE and JANE DOE, Respondents.
[G.R. No. 139808. May 12, 2000.]
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO,
Petitioner, v. COURT OF APPEALS and ERLINDA K. ILUSORIO, Respondents.
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with her
in conjugal bliss? The answer is no. Marital rights including coverture and living in
conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or detention, 1
or by which the rightful custody of a person is withheld from the one entitled thereto. 2
"Habeas corpus is a writ directed to the person detaining another, commanding him
to produce the body of the prisoner at a designated time and place, with the day and
cause of his capture and detention, to do, submit to, and receive whatsoever the court
or judge awarding the writ shall consider in that behalf." 3
It is a high prerogative, common-law writ, of ancient origin, the great object of
which is the liberation of those who may be imprisoned without sufficient cause. 4 It is
issued when one is deprived of liberty or is wrongfully prevented from exercising legal
custody over another person. 5
The petition of Erlinda K. Ilusorio 6 is to reverse the decision 7 of the Court of
Appeals and its resolution 8 dismissing the application for habeas corpus to have the
custody of her husband, lawyer Potenciano Ilusorio and enforce consortium as the
wife.
On the other hand, the petition of Potenciano Ilusorio 9 is to annul that portion of
the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her
husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation
rights.
The undisputed facts are as follows:chanrob1es virtual 1aw library
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio. Potenciano Ilusorio
is about 86 years of age possessed of extensive property valued at millions of pesos.
For many years, lawyer Potenciano Ilusorio was Chairman of the Board and President
of Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and
lived together for a period of thirty (30) years. In 1972, they separated from bed and
board for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala
Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio Country
Club when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City.
Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio
(age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta
(age 48); and Shereen (age 39).
On December 30, 1997, upon Potencianos arrival from the United States, he
stayed with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and
Erlinda (Lin), alleged that during this time, their mother gave Potenciano an overdose
of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by his doctor in
New York, U.S.A. As a consequence, Potencianos health deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a
petition 10 for guardianship over the person and property of Potenciano Ilusorio due to
the latters advanced age, frail health, poor eyesight and impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano
Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium,
Makati.
On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas
corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that
respondents 11 refused petitioners demands to see and visit her husband and
prohibited Potenciano from returning to Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered decision the
dispositive portion of which reads:j
"WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby
rendered:j
"(1) Ordering, for humanitarian consideration and upon petitioners manifestation,
respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-Yap, the administrator of
Cleveland Condominium or anywhere in its place, his guards and Potenciano Ilusorios
staff especially Ms. Aurora Montemayor to allow visitation rights to Potenciano
Ilusorios wife, Erlinda Ilusorio and all her children, notwithstanding any list limiting
visitors thereof, under penalty of contempt in case of violation of refusal thereof; . . .
"(2) ORDERING that the writ of habeas corpus previously issued be recalled and
the herein petition for habeas corpus be DENIED DUE COURSE, as it is hereby
DISMISSED for lack of unlawful restraint or detention of the subject of the petition.
"SO ORDERED." 12
Hence, the two petitions, which were consolidated and are herein jointly decided.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal
confinement or detention, 13 or by which the rightful custody of a person is withheld
from the one entitled thereto. It is available where a person continues to be unlawfully
denied of one or more of his constitutional freedoms, where there is denial of due
process, where the restraints are not merely involuntary but are unnecessary, and
where a deprivation of freedom originally valid has later become arbitrary. 14 It is
devised as a speedy and effectual remedy to relieve persons from unlawful restraint,
as the best and only sufficient defense of personal freedom. 15
The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint, and to relieve a person therefrom if such restraint is
illegal. 16
228
 To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. 17 The illegal restraint of liberty must be
actual and effective, not merely nominal or moral. 18
The evidence shows that there was no actual and effective detention or deprivation
of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The
fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication does
not necessarily render him mentally incapacitated. Soundness of mind does not hinge
on age or medical condition but on the capacity of the individual to discern his actions.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of
merit. No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of
the Court of Appeals insofar as it gives visitation rights to respondent Erlinda K.
Ilusorio. No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request
the administrator of the Cleveland Condominium not to allow his wife and other
children from seeing or visiting him. He made it clear that he did not object to seeing
them.
As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that
he was of sound and alert mind, having answered all the relevant questions to the
satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make choices. In
this case, the crucial choices revolve on his residence and the people he opts to see or
live with. The choices he made may not appeal to some of his family members but
these are choices which exclusively belong to Potenciano. He made it clear before the
Court of Appeals that he was not prevented from leaving his house or seeing people.
With that declaration, and absent any true restraint on his liberty, we have no reason to
reverse the findings of the Court of Appeals.
With his full mental capacity coupled with the right of choice, Potenciano Ilusorio
may not be the subject of visitation rights against his free choice. Otherwise, we will
deprive him of his right to privacy. Needless to say, this will run against his
fundamental constitutional right.
The Court of Appeals exceeded its authority when it awarded visitation rights in a
petition for habeas corpus where Erlinda never even prayed for such right. The ruling
is not consistent with the finding of subjects sanity.
When the court ordered the grant of visitation rights, it also emphasized that the
same shall be enforced under penalty of contempt in case of violation or refusal to
comply. Such assertion of raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve the right of a
parent to visit a minor child but the right of a wife to visit a husband. In case the
husband refuses to see his wife for private reasons, he is at liberty to do so without
threat of any penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with his
wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried
out by sheriffs or by any other mesne process. That is a matter beyond judicial
authority and is best left to the man and womans free choice.

229
[G.R. No. 189155 : September 07, 2010]
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT
OF HABEAS DATA IN FAVOR OF MELISSA C. ROXAS, MELISSA C. ROXAS,
PETITIONER, VS. GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN.
VICTOR S. IBRADO, P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN N.
BANGIT, PC/SUPT. LEON NILO A. DELA CRUZ, MAJ. GEN. RALPH VILLANUEVA,
PS/SUPT. RUDY GAMIDO LACADIN, AND CERTAIN PERSONS WHO GO BY THE
NAME[S] DEX, RC AND ROSE, RESPONDENTS.
PEREZ, J.:
At bench is a Petition For Review on Certiorari[1] assailing the Decision[2] dated
26 August 2009 of the Court of Appeals in CA-G.R. SP No. 00036-WRA -- a petition
that was commenced jointly under the Rules on the Writ of Amparo (Amparo Rule) and
Habeas Data (Habeas Data Rule). In its decision, the Court of Appeals extended to
the petitioner, Melissa C. Roxas, the privilege of the writs of amparo and habeas data
but denied the latter's prayers for an inspection order, production order and return of
specified personal belongings. The fallo of the decision reads:
WHEREFORE, the Petition is PARTIALLY MERITORIOUS. This Court hereby
grants Petitioner the privilege of the Writ of Amparo and Habeas Data.
Accordingly, Respondents are enjoined to refrain from distributing or causing the
distribution to the public of any records in whatever form, reports, documents or similar
papers relative to Petitioner's Melissa C. Roxas, and/or Melissa Roxas; alleged ties to
the CPP-NPA or pertinently related to the complained incident. Petitioner's prayers for
an inspection order, production order and for the return of the specified personal
belongings are denied for lack of merit. Although there is no evidence that
Respondents are responsible for the abduction, detention or torture of the Petitioner,
said Respondents pursuant to their legally mandated duties are, nonetheless, ordered
to continue/complete the investigation of this incident with the end in view of
prosecuting those who are responsible. Respondents are also ordered to provide
protection to the Petitioner and her family while in the Philippines against any and all
forms of harassment, intimidation and coercion as may be relevant to the grant of
these reliefs.[3]
We begin with the petitioner's allegations.
Petitioner is an American citizen of Filipino descent.[4] While in the United States,
petitioner enrolled in an exposure program to the Philippines with the group Bagong
Alyansang Makabayan-United States of America (BAYAN-USA) of which she is a
member.[5] During the course of her immersion, petitioner toured various provinces
and towns of Central Luzon and, in April of 2009, she volunteered to join members of
BAYAN-Tarlac[6] in conducting an initial health survey in La Paz, Tarlac for a future
medical mission.[7]
In pursuit of her volunteer work, petitioner brought her passport, wallet with Fifteen
Thousand Pesos (P15,000.00) in cash, journal, digital camera with memory card,
laptop computer, external hard disk, IPOD,[8] wristwatch, sphygmomanometer,
stethoscope and medicines.[9]
After doing survey work on 19 May 2009, petitioner and her companions, Juanito
Carabeo (Carabeo) and John Edward Jandoc (Jandoc), decided to rest in the house of
one Mr. Jesus Paolo (Mr. Paolo) in Sitio Bagong Sikat, Barangay Kapanikian, La Paz,
Tarlac.[10] At around 1:30 in the afternoon, however, petitioner, her companions and
Mr. Paolo were startled by the loud sounds of someone banging at the front door and a
voice demanding that they open up.[11]
Suddenly, fifteen (15) heavily armed men forcibly opened the door, barged inside
and ordered petitioner and her companions to lie on the ground face down.[12] The
armed men were all in civilian clothes and, with the exception of their leader, were also
wearing bonnets to conceal their faces.[13]
Petitioner tried to protest the intrusion, but five (5) of the armed men ganged up on
her and tied her hands.[14] At this juncture, petitioner saw the other armed men
herding Carabeo and Jandoc, already blindfolded and taped at their mouths, to a
nearby blue van. Petitioner started to shout her name.[15] Against her vigorous
resistance, the armed men dragged petitioner towards the van--bruising her arms, legs
and knees.[16] Once inside the van, but before she can be blindfolded, petitioner was
able to see the face of one of the armed men sitting beside her.[17] The van then
sped away.
After about an hour of traveling, the van stopped.[18] Petitioner, Carabeo and
Jandoc were ordered to alight.[19] After she was informed that she is being detained
for being a member of the Communist Party of the Philippines-New People's Army
(CPP-NPA), petitioner was separated from her companions and was escorted to a
room that she believed was a jail cell from the sound of its metal doors.[20] From
there, she could hear the sounds of gunfire, the noise of planes taking off and landing
and some construction bustle.[21] She inferred that she was taken to the military
camp of Fort Magsaysay in Laur, Nueva Ecija.[22]
What followed was five (5) straight days of interrogation coupled with torture.[23]
The thrust of the interrogations was to convince petitioner to abandon her communist
beliefs in favor of returning to "the fold."[24] The torture, on the other hand, consisted
of taunting, choking, boxing and suffocating the petitioner.[25]
Throughout the entirety of her ordeal, petitioner was made to suffer in blindfolds
even in her sleep.[26] Petitioner was only relieved of her blindfolds when she was
allowed to take a bath, during which she became acquainted with a woman named
"Rose" who bathed her.[27] There were also a few times when she cheated her
blindfold and was able to peek at her surroundings.[28]
Despite being deprived of sight, however, petitioner was still able to learn the
names of three of her interrogators who introduced themselves to her as "Dex,"
"James" and "RC."[29] "RC" even told petitioner that those who tortured her came
from the "Special Operations Group," and that she was abducted because her name is
included in the "Order of Battle."[30]
On 25 May 2009, petitioner was finally released and returned to her uncle's house
in Quezon City.[31] Before being released, however, the abductors gave petitioner a
cellular phone with a SIM[32] card, a slip of paper containing an e-mail address with
password,[33] a plastic bag containing biscuits and books,[34] the handcuffs used on
her, a blouse and a pair of shoes.[35] Petitioner was also sternly warned not to report
the incident to the group Karapatan or something untoward will happen to her and her
family.[36]
230
 Sometime after her release, petitioner continued to receive calls from RC via the
cellular phone given to her.[37] Out of apprehension that she was being monitored
and also fearing for the safety of her family, petitioner threw away the cellular phone
with a SIM card.
Seeking sanctuary against the threat of future harm as well as the suppression of
any existing government files or records linking her to the communist movement,
petitioner filed a Petition for the Writs of Amparo and Habeas Data before this Court on
1 June 2009.[38] Petitioner impleaded public officials occupying the uppermost
echelons of the military and police hierarchy as respondents, on the belief that it was
government agents who were behind her abduction and torture. Petitioner likewise
included in her suit "Rose," "Dex" and "RC."[39]
The Amparo and Habeas Data petition prays that: (1) respondents be enjoined
from harming or even approaching petitioner and her family; (2) an order be issued
allowing the inspection of detention areas in the 7th Infantry Division, Fort Magsaysay,
Laur, Nueva Ecija; (3) respondents be ordered to produce documents relating to any
report on the case of petitioner including, but not limited to, intelligence report and
operation reports of the 7th Infantry Division, the Special Operations Group of the
Armed Forces of the Philippines (AFP) and its subsidiaries or branch/es prior to, during
and subsequent to 19 May 2009; (4) respondents be ordered to expunge from the
records of the respondents any document pertinent or connected to Melissa C. Roxas,
Melissa Roxas or any name which sounds the same; and (5) respondents be ordered
to return to petitioner her journal, digital camera with memory card, laptop computer,
external hard disk, IPOD, wristwatch, sphygmomanometer, stethoscope, medicines
and her P15,000.00 cash.[40]
In a Resolution dated 9 June 2009, this Court issued the desired writs and referred
the case to the Court of Appeals for hearing, reception of evidence and appropriate
action.[41] The Resolution also directed the respondents to file their verified written
return.[42]
On 18 June 2009, the Office of the Solicitor General (OSG), filed a Return of the
Writs[43] on behalf of the public officials impleaded as respondents.
We now turn to the defenses interposed by the public respondents.
The public respondents label petitioner's alleged abduction and torture as "stage
managed."[44] In support of their accusation, the public respondents principally rely
on the statement of Mr. Paolo, as contained in the Special Report[45] of the La Paz
Police Station. In the Special Report, Mr. Paolo disclosed that, prior to the purported
abduction, petitioner and her companions instructed him and his two sons to avoid
leaving the house.[46] From this statement, the public respondents drew the distinct
possibility that, except for those already inside Mr. Paolo's house, nobody else has any
way of knowing where petitioner and her companions were at the time they were
supposedly abducted.[47] This can only mean, the public respondents concluded, that
if ever there was any "abduction" it must necessarily have been planned by, or done
with the consent of, the petitioner and her companions themselves.[48]
Public respondents also cited the Medical Certificate[49] of the petitioner, as
actually belying her claims that she was subjected to serious torture for five (5) days.
The public respondents noted that while the petitioner alleges that she was choked
and boxed by her abductors--inflictions that could have easily produced remarkable
bruises--her Medical Certificate only shows abrasions in her wrists and knee caps.[50]
For the public respondents, the above anomalies put in question the very
authenticity of petitioner's alleged abduction and torture, more so any military or police
involvement therein. Hence, public respondents conclude that the claims of abduction
and torture was no more than a charade fabricated by the petitioner to put the
government in bad light, and at the same time, bring great media mileage to her and
the group that she represents.[51]
Nevertheless, even assuming the abduction and torture to be genuine, the public
respondents insist on the dismissal of the Amparo and Habeas Data petition based on
the following grounds: (a) as against respondent President Gloria Macapagal-Arroyo,
in particular, because of her immunity from suit,[52] and (b) as against all of the public
respondents, in general, in view of the absence of any specific allegation in the petition
that they had participated in, or at least authorized, the commission of such atrocities.
[53]
Finally, the public respondents posit that they had not been remiss in their duty to
ascertain the truth behind the allegations of the petitioner.[54] In both the police and
military arms of the government machinery, inquiries were set-up in the following
manner:
Police Action
Police authorities first learned of the purported abduction around 4:30 o'clock in the
afternoon of 19 May 2009, when Barangay Captain Michael M. Manuel came to the La
Paz Municipal Police Station to report the presence of heavily armed men somewhere
in Barangay Kapanikian.[55] Acting on the report, the police station launched an initial
investigation.[56]
The initial investigation revolved around the statement of Mr. Paolo, who informed
the investigators of an abduction incident involving three (3) persons--later identified as
petitioner Melissa Roxas, Juanito Carabeo and John Edward Jandoc--who were all
staying in his house.[57] Mr. Paolo disclosed that the abduction occurred around 1:30
o'clock in the afternoon, and was perpetrated by about eight (8) heavily armed men
who forced their way inside his house.[58] Other witnesses to the abduction also
confirmed that the armed men used a dark blue van with an unknown plate number
and two (2) Honda XRM motorcycles with no plate numbers.[59]
At 5:00 o'clock in the afternoon of 19 May 2009, the investigators sent a Flash
Message to the different police stations surrounding La Paz, Tarlac, in an effort to track
and locate the van and motorcycles of the suspects. Unfortunately, the effort yielded
negative results.[60]
On 20 May 2009, the results of the initial investigation were included in a Special
Report[61] that was transmitted to the Tarlac Police Provincial Office, headed by public
respondent P/S Supt. Rudy Lacadin (Supt. Lacadin). Public respondent Supt. Lacadin,
in turn, informed the Regional Police Office of Region 3 about the abduction.[62]
Follow-up investigations were, at the same time, pursued.[63]
On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz, as Director of
the Regional Police Office for Region 3, caused the creation of Special Investigation
Task Group--CAROJAN (Task Group CAROJAN) to conduct an in-depth investigation
on the abduction of the petitioner, Carabeo and Jandoc.[64]
231
 Task Group CAROJAN started its inquiry by making a series of background
examinations on the victims of the purported abduction, in order to reveal the motive
behind the abduction and, ultimately, the identity of the perpetrators.[65] Task Group
CAROJAN also maintained liaisons with Karapatan and the Alliance for Advancement
of People's Rights--organizations trusted by petitioner--in the hopes of obtaining the
latter's participation in the ongoing investigations.[66] Unfortunately, the letters sent by
the investigators requesting for the availability of the petitioner for inquiries were left
unheeded.[67]
The progress of the investigations conducted by Task Group CAROJAN had been
detailed in the reports[68] that it submitted to public respondent General Jesus Ame
Verzosa, the Chief of the Philippine National Police. However, as of their latest report
dated 29 June 2009, Task Group CAROJAN is still unable to make a definitive finding
as to the true identity and affiliation of the abductors--a fact that task group CAROJAN
attributes to the refusal of the petitioner, or any of her fellow victims, to cooperate in
their investigative efforts.[69]
Military Action
Public respondent Gilbert Teodoro, the Secretary of National Defense, first came to
know about the alleged abduction and torture of the petitioner upon receipt of the
Resolution of this Court directing him and the other respondents to file their return.[70]
Immediately thereafter, he issued a Memorandum Directive[71] addressed to the Chief
of Staff of the AFP, ordering the latter, among others, to conduct an inquiry to
determine the validity of the accusation of military involvement in the abduction.[72]
Acting pursuant to the Memorandum Directive, public respondent General Victor S.
Ibrado, the AFP Chief of Staff, sent an AFP Radio Message[73] addressed to public
respondent Lieutenant General Delfin N. Bangit (Lt. Gen. Bangit), the Commanding
General of the Army, relaying the order to cause an investigation on the abduction of
the petitioner.[74]
For his part, and taking cue from the allegations in the amparo petition, public
respondent Lt. Gen. Bangit instructed public respondent Major General Ralph A.
Villanueva (Maj. Gen. Villanueva), the Commander of the 7th Infantry Division of the
Army based in Fort Magsaysay, to set in motion an investigation regarding the possible
involvement of any personnel assigned at the camp in the purported abduction of the
petitioner.[75] In turn, public respondent Maj. Gen. Villanueva tapped the Office of the
Provost Marshal (OPV) of the 7th Infantry Division, to conduct the investigation.[76]
On 23 June 2009, the OPV of the 7th Infantry Division released an Investigation
Report[77] detailing the results of its inquiry. In substance, the report described
petitioner's allegations as "opinionated" and thereby cleared the military from any
involvement in her alleged abduction and torture.[78]
The Decision of the Court of Appeals
In its Decision,[79] the Court of Appeals gave due weight and consideration to the
petitioner's version that she was indeed abducted and then subjected to torture for five
(5) straight days. The appellate court noted the sincerity and resolve by which the
petitioner affirmed the contents of her affidavits in open court, and was thereby
convinced that the latter was telling the truth.[80]
On the other hand, the Court of Appeals disregarded the argument of the public
respondents that the abduction of the petitioner was "stage managed," as it is merely
based on an unfounded speculation that only the latter and her companions knew
where they were staying at the time they were forcibly taken.[81] The Court of Appeals
further stressed that the Medical Certificate of the petitioner can only affirm the
existence of a true abduction, as its findings are reflective of the very injuries the latter
claims to have sustained during her harrowing ordeal, particularly when she was
handcuffed and then dragged by her abductors onto their van.[82]
The Court of Appeals also recognized the existence of an ongoing threat against
the security of the petitioner, as manifested in the attempts of "RC" to contact and
monitor her, even after she was released.[83] This threat, according to the Court of
Appeals, is all the more compounded by the failure of the police authorities to identify
the material perpetrators who are still at large.[84] Thus, the appellate court extended
to the petitioner the privilege of the writ of amparo by directing the public respondents
to afford protection to the former, as well as continuing, under the norm of
extraordinary diligence, their existing investigations involving the abduction.[85]
The Court of Appeals likewise observed a transgression of the right to informational
privacy of the petitioner, noting the existence of "records of investigations" that
concerns the petitioner as a suspected member of the CPP-NPA.[86] The appellate
court derived the existence of such records from a photograph and video file presented
in a press conference by party-list representatives Jovito Palparan (Palparan) and
Pastor Alcover (Alcover), which allegedly show the petitioner participating in rebel
exercises. Representative Alcover also revealed that the photograph and video came
from a female CPP-NPA member who wanted out of the organization. According to the
Court of Appeals, the proliferation of the photograph and video, as well as any form of
media, insinuating that petitioner is part of the CPP-NPA does not only constitute a
violation of the right to privacy of the petitioner but also puts further strain on her
already volatile security.[87] To this end, the appellate court granted the privilege of
the writ of habeas data mandating the public respondents to refrain from distributing to
the public any records, in whatever form, relative to petitioner's alleged ties with the
CPP-NPA or pertinently related to her abduction and torture.[88]
The foregoing notwithstanding, however, the Court of Appeals was not convinced
that the military or any other person acting under the acquiescence of the government,
were responsible for the abduction and torture of the petitioner.[89] The appellate
court stressed that, judging by her own statements, the petitioner merely "believed"
that the military was behind her abduction.[90] Thus, the Court of Appeals absolved
the public respondents from any complicity in the abduction and torture of petitioner.
[91] The petition was likewise dismissed as against public respondent President
Gloria Macapagal-Arroyo, in view of her immunity from suit.[92]
Accordingly, the petitioner's prayers for the return of her personal belongings were
denied.[93] Petitioner's prayers for an inspection order and production order also met
the same fate.[94]
Hence, this appeal by the petitioner.
AMPARO
A.
232
 Petitioner first contends that the Court of Appeals erred in absolving the public
respondents from any responsibility in her abduction and torture.[95] Corollary to this,
petitioner also finds fault on the part of Court of Appeals in denying her prayer for the
return of her personal belongings.[96]
Petitioner insists that the manner by which her abduction and torture was carried
out, as well as the sounds of construction, gun-fire and airplanes that she heard while
in detention, as these were detailed in her two affidavits and affirmed by her in open
court, are already sufficient evidence to prove government involvement.[97]
Proceeding from such assumption, petitioner invokes the doctrine of command
responsibility to implicate the high-ranking civilian and military authorities she
impleaded as respondents in her amparo petition.[98] Thus, petitioner seeks from this
Court a pronouncement holding the respondents as complicit in her abduction and
torture, as well as liable for the return of her belongings.[99]
Command Responsibility in Amparo Proceedings
It must be stated at the outset that the use by the petitioner of the doctrine of
command responsibility as the justification in impleading the public respondents in her
amparo petition, is legally inaccurate, if not incorrect. The doctrine of command
responsibility is a rule of substantive law that establishes liability and, by this account,
cannot be a proper legal basis to implead a party-respondent in an amparo petition.
[100]
The case of Rubrico v. Arroyo,[101] which was the first to examine command
responsibility in the context of an amparo proceeding, observed that the doctrine is
used to pinpoint liability. Rubrico notes that:[102]
The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas, "command
responsibility," in its simplest terms, means the "responsibility of commanders for
crimes committed by subordinate members of the armed forces or other persons
subject to their control in international wars or domestic conflict."[103] In this sense,
command responsibility is properly a form of criminal complicity. The Hague
Conventions of 1907 adopted the doctrine of command responsibility,[104]
foreshadowing the present-day precept of holding a superior accountable for the
atrocities committed by his subordinates should he be remiss in his duty of control over
them. As then formulated, command responsibility is "an omission mode of individual
criminal liability," whereby the superior is made responsible for crimes committed by
his subordinates for failing to prevent or punish the perpetrators[105] (as opposed to
crimes he ordered). (Emphasis in the orginal, underscoring supplied)
Since the application of command responsibility presupposes an imputation of
individual liability, it is more aptly invoked in a full-blown criminal or administrative case
rather than in a summary amparo proceeding. The obvious reason lies in the nature of
the writ itself:
The writ of amparo is a protective remedy aimed at providing judicial relief
consisting of the appropriate remedial measures and directives that may be crafted by
the court, in order to address specific violations or threats of violation of the
constitutional rights to life, liberty or security.[106] While the principal objective of its
proceedings is the initial determination of whether an enforced disappearance,
extralegal killing or threats thereof had transpired--the writ does not, by so doing, fix
liability for such disappearance, killing or threats, whether that may be criminal, civil or
administrative under the applicable substantive law.[107] The rationale underpinning
this peculiar nature of an amparo writ has been, in turn, clearly set forth in the
landmark case of The Secretary of National Defense v. Manalo:[108]
x x x The remedy provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will
require full and exhaustive proceedings.[109](Emphasis supplied)
It must be clarified, however, that the inapplicability of the doctrine of command
responsibility in an amparo proceeding does not, by any measure, preclude impleading
military or police commanders on the ground that the complained acts in the petition
were committed with their direct or indirect acquiescence. In which case, commanders
may be impleaded--not actually on the basis of command responsibility--but rather on
the ground of their responsibility, or at least accountability. In Razon v. Tagitis,[110] the
distinct, but interrelated concepts of responsibility and accountability were given
special and unique significations in relation to an amparo proceeding, to wit:
x x x Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among
them, the directive to file the appropriate criminal and civil cases against the
responsible parties in the proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who exhibited involvement in
the enforced disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry,
but have failed to discharge, the burden of extraordinary diligence in the investigation
of the enforced disappearance.
Responsibility of Public Respondents
At any rate, it is clear from the records of the case that the intent of the petitioner in
impleading the public respondents is to ascribe some form of responsibility on their
part, based on her assumption that they, in one way or the other, had condoned her
abduction and torture.[111]
To establish such assumption, petitioner attempted to show that it was government
agents who were behind her ordeal. Thus, the petitioner calls attention to the
circumstances surrounding her abduction and torture--i.e., the forcible taking in broad
daylight; use of vehicles with no license plates; utilization of blindfolds; conducting
interrogations to elicit communist inclinations; and the infliction of physical abuse--
which, according to her, is consistent with the way enforced disappearances are being
practiced by the military or other state forces.[112]
233
 Moreover, petitioner also claims that she was held inside the military camp Fort
Magsaysay--a conclusion that she was able to infer from the travel time required to
reach the place where she was actually detained, and also from the sounds of
construction, gun-fire and airplanes she heard while thereat.[113]
We are not impressed. The totality of the evidence presented by the petitioner
does not inspire reasonable conclusion that her abductors were military or police
personnel and that she was detained at Fort Magsaysay.
First. The similarity between the circumstances attending a particular case of
abduction with those surrounding previous instances of enforced disappearances does
not, necessarily, carry sufficient weight to prove that the government orchestrated such
abduction. We opine that insofar as the present case is concerned, the perceived
similarity cannot stand as substantial evidence of the involvement of the government.
In amparo proceedings, the weight that may be accorded to parallel circumstances
as evidence of military involvement depends largely on the availability or non-
availability of other pieces of evidence that has the potential of directly proving the
identity and affiliation of the perpetrators. Direct evidence of identity, when obtainable,
must be preferred over mere circumstantial evidence based on patterns and similarity,
because the former indubitably offers greater certainty as to the true identity and
affiliation of the perpetrators. An amparo court cannot simply leave to remote and
hazy inference what it could otherwise clearly and directly ascertain.
In the case at bench, petitioner was, in fact, able to include in her Offer of Exhibits,
[114] the cartographic sketches[115] of several of her abductors whose faces she
managed to see. To the mind of this Court, these cartographic sketches have the
undeniable potential of giving the greatest certainty as to the true identity and affiliation
of petitioner's abductors. Unfortunately for the petitioner, this potential has not been
realized in view of the fact that the faces described in such sketches remain
unidentified, much less have been shown to be that of any military or police
personnel. Bluntly stated, the abductors were not proven to be part of either the
military or the police chain of command.
Second. The claim of the petitioner that she was taken to Fort Magsaysay was not
adequately established by her mere estimate of the time it took to reach the place
where she was detained and by the sounds that she heard while thereat. Like the
Court of Appeals, We are not inclined to take the estimate and observations of the
petitioner as accurate on its face--not only because they were made mostly while she
was in blindfolds, but also in view of the fact that she was a mere sojourner in the
Philippines, whose familiarity with Fort Magsaysay and the travel time required to
reach it is in itself doubtful.[116] With nothing else but obscure observations to support
it, petitioner's claim that she was taken to Fort Magsaysay remains a mere
speculation.
In sum, the petitioner was not able to establish to a concrete point that her
abductors were actually affiliated, whether formally or informally, with the military or the
police organizations. Neither does the evidence at hand prove that petitioner was
indeed taken to the military camp Fort Magsaysay to the exclusion of other places.
These evidentiary gaps, in turn, make it virtually impossible to determine whether the
abduction and torture of the petitioner was in fact committed with the acquiescence of
the public respondents. On account of this insufficiency in evidence, a pronouncement
of responsibility on the part of the public respondents, therefore, cannot be made.
Prayer for the Return of Personal Belongings
This brings Us to the prayer of the petitioner for the return of her personal
belongings.
In its decision, the Court of Appeals denied the above prayer of the petitioner by
reason of the failure of the latter to prove that the public respondents were involved in
her abduction and torture.[117] We agree with the conclusion of the Court of Appeals,
but not entirely with the reason used to support it. To the mind of this Court, the prayer
of the petitioner for the return of her belongings is doomed to fail regardless of whether
there is sufficient evidence to hold public respondents responsible for the abduction of
the petitioner.
In the first place, an order directing the public respondents to return the personal
belongings of the petitioner is already equivalent to a conclusive pronouncement of
liability. The order itself is a substantial relief that can only be granted once the liability
of the public respondents has been fixed in a full and exhaustive proceeding. As
already discussed above, matters of liability are not determinable in a mere summary
amparo proceeding.[118]
But perhaps the more fundamental reason in denying the prayer of the petitioner,
lies with the fact that a person's right to be restituted of his property is already
subsumed under the general rubric of property rights--which are no longer protected
by the writ of amparo.[119] Section 1 of the Amparo Rule,[120] which defines the
scope and extent of the writ, clearly excludes the protection of property rights.
B.
The next error raised by the petitioner is the denial by the Court of Appeals of her
prayer for an inspection of the detention areas of Fort Magsaysay.[121]
Considering the dearth of evidence concretely pointing to any military involvement
in petitioner's ordeal, this Court finds no error on the part of the Court of Appeals in
denying an inspection of the military camp at Fort Magsaysay. We agree with the
appellate court that a contrary stance would be equivalent to sanctioning a "fishing
expedition," which was never intended by the Amparo Rule in providing for the interim
relief of inspection order.[122] Contrary to the explicit position[123] espoused by the
petitioner, the Amparo Rule does not allow a "fishing expedition" for evidence.
An inspection order is an interim relief designed to give support or strengthen the
claim of a petitioner in an amparo petition, in order to aid the court before making a
decision.[124] A basic requirement before an amparo court may grant an inspection
order is that the place to be inspected is reasonably determinable from the allegations
of the party seeking the order. While the Amparo Rule does not require that the place
to be inspected be identified with clarity and precision, it is, nevertheless, a minimum
for the issuance of an inspection order that the supporting allegations of a party be
sufficient in itself, so as to make a prima facie case. This, as was shown above,
petitioner failed to do.
Since the very estimates and observations of the petitioner are not strong enough
to make out a prima facie case that she was detained in Fort Magsaysay, an
inspection of the military camp cannot be ordered. An inspection order cannot issue
on the basis of allegations that are, in themselves, unreliable and doubtful.
234
 HABEAS DATA
As earlier intimated, the Court of Appeals granted to the petitioner the privilege of
the writ of habeas data, by enjoining the public respondents from "distributing or
causing the distribution to the public any records in whatever form, reports, documents
or similar papers" relative to the petitioner's "alleged ties with the CPP-NPA or
pertinently related to her abduction and torture." Though not raised as an issue in this
appeal, this Court is constrained to pass upon and review this particular ruling of the
Court of Appeals in order to rectify, what appears to Us, an error infecting the grant.
For the proper appreciation of the rationale used by the Court of Appeals in
granting the privilege of the writ of habeas data, We quote hereunder the relevant
portion[125] of its decision:
Under these premises, Petitioner prayed that all the records, intelligence reports
and reports on the investigations conducted on Melissa C. Roxas or Melissa Roxas be
produced and eventually expunged from the records. Petitioner claimed to be included
in the Government's Order of Battle under Oplan Bantay Laya which listed political
opponents against whom false criminal charges were filed based on made up and
perjured information.
Pending resolution of this petition and before Petitioner could testify before Us, Ex-
army general Jovito Palaparan, Bantay party-list, and Pastor Alcover of the Alliance for
Nationalism and Democracy party-list held a press conference where they revealed
that they received an information from a female NPA rebel who wanted out of the
organization, that Petitioner was a communist rebel. Alcover claimed that said
information reached them thru a letter with photo of Petitioner holding firearms at an
NPA training camp and a video CD of the training exercises.
Clearly, and notwithstanding Petitioner's denial that she was the person in said
video, there were records of other investigations on Melissa C. Roxas or Melissa
Roxas which violate her right to privacy. Without a doubt, reports of such nature have
reasonable connections, one way or another, to petitioner's abduction where she
claimed she had been subjected to cruelties and dehumanizing acts which nearly
caused her life precisely due to allegation of her alleged membership in the CPP-NPA.
And if said report or similar reports are to be continuously made available to the public,
Petitioner's security and privacy will certainly be in danger of being violated or
transgressed by persons who have strong sentiments or aversion against members of
this group. The unregulated dissemination of said unverified video CD or reports of
Petitioner's alleged ties with the CPP-NPA indiscriminately made available for public
consumption without evidence of its authenticity or veracity certainly violates
Petitioner's right to privacy which must be protected by this Court. We, thus, deem it
necessary to grant Petitioner the privilege of the Writ of Habeas Data. (Emphasis
supplied).
The writ of habeas data was conceptualized as a judicial remedy enforcing the
right to privacy, most especially the right to informational privacy of individuals.[126]
The writ operates to protect a person's right to control information regarding himself,
particularly in the instances where such information is being collected through unlawful
means in order to achieve unlawful ends.
Needless to state, an indispensable requirement before the privilege of the writ
may be extended is the showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim.[127]
This, in the case at bench, the petitioner failed to do.
The main problem behind the ruling of the Court of Appeals is that there is actually
no evidence on record that shows that any of the public respondents had violated or
threatened the right to privacy of the petitioner. The act ascribed by the Court of
Appeals to the public respondents that would have violated or threatened the right to
privacy of the petitioner, i.e., keeping records of investigations and other reports about
the petitioner's ties with the CPP-NPA, was not adequately proven--considering that
the origin of such records were virtually unexplained and its existence, clearly, only
inferred by the appellate court from the video and photograph released by
Representatives Palparan and Alcover in their press conference. No evidence on
record even shows that any of the public respondents had access to such video or
photograph.
In view of the above considerations, the directive by the Court of Appeals enjoining
the public respondents from "distributing or causing the distribution to the public any
records in whatever form, reports, documents or similar papers" relative to the
petitioner's "alleged ties with the CPP-NPA," appears to be devoid of any legal basis.
The public respondents cannot be ordered to refrain from distributing something that,
in the first place, it was not proven to have.
Verily, until such time that any of the public respondents were found to be actually
responsible for the abduction and torture of the petitioner, any inference regarding the
existence of reports being kept in violation of the petitioner's right to privacy becomes
farfetched, and premature.
For these reasons, this Court must, at least in the meantime, strike down the grant
of the privilege of the writ of habeas data.
DISPOSITION OF THE CASE
Our review of the evidence of the petitioner, while telling of its innate insufficiency
to impute any form of responsibility on the part of the public respondents, revealed two
important things that can guide Us to a proper disposition of this case. One, that
further investigation with the use of extraordinary diligence must be made in order to
identify the perpetrators behind the abduction and torture of the petitioner; and two,
that the Commission on Human Rights (CHR), pursuant to its Constitutional mandate
to "investigate all forms of human rights violations involving civil and political rights and
to provide appropriate legal measures for the protection of human rights,"[128] must
be tapped in order to fill certain investigative and remedial voids.
Further Investigation Must Be Undertaken
Ironic as it seems, but part and parcel of the reason why the petitioner was not able
to adduce substantial evidence proving her allegations of government complicity in her
abduction and torture, may be attributed to the incomplete and one-sided
investigations conducted by the government itself. This "awkward" situation, wherein
the very persons alleged to be involved in an enforced disappearance or extralegal
killing are, at the same time, the very ones tasked by law to investigate the matter, is a
unique characteristic of these proceedings and is the main source of the "evidentiary
difficulties" faced by any petitioner in any amparo case.[129]
235
 Cognizant of this situation, however, the Amparo Rule placed a potent safeguard--
requiring the "respondent who is a public official or employee" to prove that no less
than "extraordinary diligence as required by applicable laws, rules and regulations was
observed in the performance of duty."[130] Thus, unless and until any of the public
respondents is able to show to the satisfaction of the amparo court that extraordinary
diligence has been observed in their investigations, they cannot shed the allegations of
responsibility despite the prevailing scarcity of evidence to that effect.
With this in mind, We note that extraordinary diligence, as required by the Amparo
Rule, was not fully observed in the conduct of the police and military investigations in
the case at bar.
A perusal of the investigation reports submitted by Task Group CAROJAN shows
modest effort on the part of the police investigators to identify the perpetrators of the
abduction. To be sure, said reports are replete with background checks on the victims
of the abduction, but are, at the same time, comparatively silent as to other concrete
steps the investigators have been taking to ascertain the authors of the crime.
Although conducting a background investigation on the victims is a logical first step in
exposing the motive behind the abduction--its necessity is clearly outweighed by the
need to identify the perpetrators, especially in light of the fact that the petitioner, who
was no longer in captivity, already came up with allegations about the motive of her
captors.
Instead, Task Group CAROJAN placed the fate of their investigations solely on the
cooperation or non-cooperation of the petitioner--who, they claim, was less than
enthusiastic in participating in their investigative efforts.[131] While it may be
conceded that the participation of the petitioner would have facilitated the progress of
Task Group CAROJAN's investigation, this Court believes that the former's reticence to
cooperate is hardly an excuse for Task Group CAROJAN not to explore other means
or avenues from which they could obtain relevant leads.[132] Indeed, while the
allegations of government complicity by the petitioner cannot, by themselves, hold up
as adequate evidence before a court of law--they are, nonetheless, a vital source of
valuable investigative leads that must be pursued and verified, if only to comply with
the high standard of diligence required by the Amparo Rule in the conduct of
investigations.
Assuming the non-cooperation of the petitioner, Task Group CAROJAN's reports
still failed to explain why it never considered seeking the assistance of Mr. Jesus
Paolo--who, along with the victims, is a central witness to the abduction. The reports
of Task Group CAROJAN is silent in any attempt to obtain from Mr. Paolo, a
cartographic sketch of the abductors or, at the very least, of the one who, by
petitioner's account, was not wearing any mask.
The recollection of Mr. Paolo could have served as a comparative material to the
sketches included in petitioner's offer of exhibits that, it may be pointed out, were
prepared under the direction of, and first submitted to, the CHR pursuant to the latter's
independent investigation on the abduction and torture of the petitioner.[133] But as
mentioned earlier, the CHR sketches remain to be unidentified as of this date.
In light of these considerations, We agree with the Court of Appeals that further
investigation under the norm of extraordinary diligence should be undertaken. This
Court simply cannot write finis to this case, on the basis of an incomplete investigation
conducted by the police and the military. In a very real sense, the right to security of
the petitioner is continuously put in jeopardy because of the deficient investigation that
directly contributes to the delay in bringing the real perpetrators before the bar of
justice.
To add teeth to the appellate court's directive, however, We find it fitting, nay,
necessary to shift the primary task of conducting further investigations on the
abduction and torture of the petitioner upon the CHR.[134] We note that the CHR,
unlike the police or the military, seems to enjoy the trust and confidence of the
petitioner--as evidenced by her attendance and participation in the hearings already
conducted by the commission.[135] Certainly, it would be reasonable to assume from
such cooperation that the investigations of the CHR have advanced, or at the very
least, bears the most promise of advancing farther, in terms of locating the
perpetrators of the abduction, and is thus, vital for a final resolution of this petition.
From this perspective, We also deem it just and appropriate to relegate the task of
affording interim protection to the petitioner, also to the CHR.
Hence, We modify the directive of the Court of the Appeals for further investigation,
as follows--
1.)
Appointing the CHR as the lead agency tasked with conducting further
investigation regarding the abduction and torture of the petitioner. Accordingly, the
CHR shall, under the norm of extraordinary diligence, take or continue to take the
necessary steps: (a) to identify the persons described in the cartographic sketches
submitted by the petitioner, as well as their whereabouts; and (b) to pursue any other
leads relevant to petitioner's abduction and torture.
2.)
Directing the incumbent Chief of the Philippine National Police (PNP), or his
successor, and the incumbent Chief of Staff of the AFP, or his successor, to extend
assistance to the ongoing investigation of the CHR, including but not limited to
furnishing the latter a copy of its personnel records circa the time of the petitioner's
abduction and torture, subject to reasonable regulations consistent with the
Constitution and existing laws.
3.)
Further directing the incumbent Chief of the PNP, or his successor, to furnish to this
Court, the Court of Appeals, and the petitioner or her representative, a copy of the
reports of its investigations and their recommendations, other than those that are
already part of the records of this case, within ninety (90) days from receipt of this
decision.
4.)
Further directing the CHR to (a) furnish to the Court of Appeals within ninety (90)
days from receipt of this decision, a copy of the reports on its investigation and its
corresponding recommendations; and to (b) provide or continue to provide protection
to the petitioner during her stay or visit to the Philippines, until such time as may
hereinafter be determined by this Court.
Accordingly, this case must be referred back to the Court of Appeals, for the
purposes of monitoring compliance with the above directives and determining whether,
236
in light of any recent reports or recommendations, there would already be sufficient
evidence to hold any of the public respondents responsible or, at least, accountable.
After making such determination, the Court of Appeals shall submit its own report with
recommendation to this Court for final action. The Court of Appeals will continue to
have jurisdiction over this case in order to accomplish its tasks under this decision.
WHEREFORE, the instant petition is PARTIALLY MERITORIOUS. We hereby
render a decision:
1.)
AFFIRMING the denial of the petitioner's prayer for the return of her personal
belongings;
2.)
AFFIRMING the denial of the petitioner's prayer for an inspection of the detention
areas of Fort Magsaysay.
3.)
REVERSING the grant of the privilege of habeas data, without prejudice, however,
to any modification that this Court may make on the basis of the investigation reports
and recommendations submitted to it under this decision.
4.)
MODIFYING the directive that further investigation must be undertaken, as
follows--
a.
APPOINTING the Commission on Human Rights as the lead agency tasked with
conducting further investigation regarding the abduction and torture of the petitioner.
Accordingly, the Commission on Human Rights shall, under the norm of extraordinary
diligence, take or continue to take the necessary steps: (a) to identify the persons
described in the cartographic sketches submitted by the petitioner, as well as their
whereabouts; and (b) to pursue any other leads relevant to petitioner's abduction and
torture.
b.
DIRECTING the incumbent Chief of the Philippine National Police, or his
successor, and the incumbent Chief of Staff of the Armed Forces of the Philippines, or
his successor, to extend assistance to the ongoing investigation of the Commission on
Human Rights, including but not limited to furnishing the latter a copy of its personnel
records circa the time of the petitioner's abduction and torture, subject to reasonable
regulations consistent with the Constitution and existing laws.
c.
Further DIRECTING the incumbent Chief of the Philippine National Police, or his
successor, to furnish to this Court, the Court of Appeals, and the petitioner or her
representative, a copy of the reports of its investigations and their recommendations,
other than those that are already part of the records of this case, within ninety (90)
days from receipt of this decision.
d.
Further DIRECTING the Commission on Human Rights (a) to furnish to the Court
of Appeals within ninety (90) days from receipt of this decision, a copy of the reports on
its investigation and its corresponding recommendations; and (b) to provide or
continue to provide protection to the petitioner during her stay or visit to the
Philippines, until such time as may hereinafter be determined by this Court.
5.)
REFERRING BACK the instant case to the Court of Appeals for the following
purposes:
a.
To MONITOR the investigations and actions taken by the PNP, AFP, and the CHR;
b.
To DETERMINE whether, in light of the reports and recommendations of the CHR,
the abduction and torture of the petitioner was committed by persons acting under any
of the public respondents; and on the basis of this determination--
c.
To SUBMIT to this Court within ten (10) days from receipt of the report and
recommendation of the Commission on Human Rights--its own report, which shall
include a recommendation either for the DISMISSAL of the petition as against the
public respondents who were found not responsible and/or accountable, or for the
APPROPRIATE REMEDIAL MEASURES, AS MAY BE ALLOWED BY THE AMPARO
AND HABEAS DATA RULES, TO BE UNDERTAKEN as against those found
responsible and/or accountable.
Accordingly, the public respondents shall remain personally impleaded in this
petition to answer for any responsibilities and/or accountabilities they may have
incurred during their incumbencies.
Other findings of the Court of Appeals in its Decision dated 26 August 2009 in CA-
G.R. SP No. 00036-WRA that are not contrary to this decision are AFFIRMED.
SO ORDERED.
237
G.R. No. 183711 : June 22, 2010
EDITA T. BURGOS, Petitioner, v. PRESIDENT GLORIA MACAPAGAL-ARROYO,
GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ.
GEN. JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL CLEMENT,
LT. COL. MELQUIADES FELICIANO, and DIRECTOR GENERAL OSCAR
CALDERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 183712
EDITA T. BURGOS, Petitioner, v. PRESIDENT GLORIA MACAPAGAL-ARROYO,
GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ.
GEN. JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, and LT. COL. NOEL
CLEMENT, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 183713
EDITA T. BURGOS, Petitioner, v. CHIEF OF STAFF OF THE ARMED FORCES OF
THE PHILIPPINES; GEN. HERMOGENES ESPERON, JR.; Commanding General
of the Philippine Army, LT. GEN. ALEXANDER YANO; and Chief of the Philippine
National Police, DIRECTOR GENERAL AVELINO RAZON, JR., Respondents.
RESOLUTION
BRION, J.:
On July 17, 2008, the Court of Appeals (CA) issued a decision1 in the consolidated
petitions for the Issuance of the Writ of Habeas Corpus,2 for Contempt3 and for the
Issuance of a Writ of Amparo4 filed by petitioner Edita T. Burgos on behalf of her son
Jonas Joseph T. Burgos, who was forcibly taken and abducted by a group of four men
and by a woman from the extension portion of Hapag Kainan Restaurant, located at
the ground floor of Ever Gotesco Mall, Commonwealth Avenue, Quezon City, on April
28, 2007. This CA decision5 dismissed the petitioner's petition for the Issuance of the
Writ of Habeas Corpus; denied the petitioner's motion to declare the respondents in
contempt; and partially granted the privilege of the Writ of Amparo in favor of the
petitioner.
The Antecedents
The established facts, as found by the CA, are summarized below:6
The established facts show that at around one o'clock in the afternoon of April 28,
2007, Jonas Joseph T. Burgos ' a farmer advocate and a member of Kilusang
Magbubukid sa Bulacan (a chapter of the militant peasant organization Kilusang
Magbubukid ng Pilipinas) ' was forcibly taken and abducted by a group of four (4) men
and a woman from the extension portion of Hapag Kainan Restaurant, located at the
ground floor of Ever Gotesco Mall, Commonwealth Avenue, Quezon City. On his way
out of the restaurant, Jonas told the manager, "Ma'am aktibista lang po ako!" When a
security guard tried to intervene, after he noticed that the group was forcibly dragging a
male person out of the restaurant, he was told, "Pare, pulis!" The guard then backed
off but was able to see that Jonas was forced into the rear portion of a plain maroon
colored Toyota Revo with plate number TAB 194. The guard then noted the plate
number and reported the incident to his superiors as well as to the police on duty in the
said mall.
On April 30, 2007, the petitioner held a press conference and announced that her
son Jonas was missing. That same day, the petitioner sought confirmation from the
guard if the person abducted was her son Jonas. Upon subsequent police
investigation and LTO verification, it was discovered that plate number TAB 194 was
registered to a 1991 Isuzu XLT vehicle owned by a certain Mauro B. Mudlong. It was
also later confirmed by employees of the Department of Environment and Natural
Resources (DENR) that Mudlong was arrested and his 1991 Isuzu XLT vehicle was
seized on June 24, 2006 by Cpl. Castro Bugalan and Pfc. Jose Villea of the 56th
Infantry Battalion (IB) of the Philippine Army for transporting timber without permit. As
agreed upon by the DENR employees and officers of the 56th IB, the vehicle with the
license plate no. TAB 194 was impounded in the 56th IB headquarters whose
commanding officer at that time was Lt. Col. Noel Clement.
The established facts also show that Lt. Col. Clement and the soldiers of the 56th
IB went on retraining at the Headquarters of the First Scout Rangers Regiment (Camp
Tecson) in Brgy. Tartaro, San Miguel, Bulacan starting November 28, 2006. A "left-
behind force" or a squad remained in the camp of the 56th IB to secure the premises
and equipment as it awaited the arrival of the 69th IB, headed by Lt. Col. Edison Caga,
which took over the 56th IB's area of responsibility for the duration of the retraining.
The 69th IB arrived at Camp Tecson on December 1, 2006, and remained there until
March 7, 2007, when the 56th IB returned. There was no formal turnover or inventory
of equipment and vehicles when the 69th IB arrived on December 1, 2006.
Meanwhile, on January 17, 2007, Lt. Col. Melquiades Feliciano took command of
the 56th IB from Lt. Col. Clement. The actual turnover of command took place at Camp
Tecson where the 56th IB was retraining. At the time Jonas was abducted on April 28,
2007, Lt. Col. Feliciano was the 56th IB's commanding officer. Earlier, on March 23,
2007, 2nd Lt. Dick A. Abletes, a member of the 56th IB, was caught on video talking to
two persons, a male and a female, at McDonald's Bocaue. In the video, he was seen
handing a document to the two persons. On March 26, 2007, 2nd Lt. Abletes was
arrested and charges were soon filed against him with the Judge Advocate General for
violations of Articles 82, 96 and 97 of the Articles of War.
Prior to Jonas' abduction, Mudlong's 1991 Isuzu XLT vehicle remained impounded
at the 56th IB's Headquarters. In May 2007, right after Jonas' abduction was made
public, it was discovered that plate number TAB 194 of this 1991 Isuzu XLT vehicle
was missing, and the engine and other spare parts were "cannibalized."
On direct examination, the petitioner testified before the CA that the police was
able to generate cartographic sketches of two (one male and one female) of the
abductors of Jonas based on its interview of eyewitnesses.7 The petitioner narrated
further that these cartographic sketches were identified by State Prosecutor Emmanuel
Velasco of the Department of Justice (DOJ); that when she went to see State
Prosecutor Velasco personally, he gave her "five names" who were allegedly involved
in the abduction of Jonas (namely T/Sgt. Jason Roxas, Cpl. Joana Francisco, M/Sgt.
Aron Arroyo, and 1st Lt. Jaime Mendaros);8 and that the information from State
Prosecutor Velasco's sources corroborated the same information she received earlier
from her own sources.9 The petitioner also testified that nothing came out of the
information given by State Prosecutor Velasco because he was "pulled out from the
investigation by the DOJ Secretary,"10 and that the police, particularly P/Supt. Jonnel
C. Estomo, failed to investigate and act upon these leads.11
238
 On August 30, 2007, P/Supt. Estomo (the lead investigator in the investigation
conducted by the Philippine National Police-Criminal Investigation and Detection
Group [PNP-CIDG]) testified before the CA that he did not investigate or look into the
identities of the cartographic sketches of the two abductors provided by the PNP
Criminal Investigation Unit, Quezon City.12 P/Supt. Estomo testified further that he
showed the photos of Cpl. Bugalan and Pfc.Villea to witness Larry Marquez for
identification but failed to show any photos of the other officers and men of the 56th IB.
13 Finally, P/Supt. Estomo also testified that he did not propound any clarificatory
questions regarding the disappearance of Jonas Burgos to Lt. Cols. Feliciano,
Clement, and Caga of the 56th IB who merely voluntarily submitted their statements.14
On August 29, 2007, the PNP-CIDG presented Emerito Lipio @ KA TIBO/KA CRIS,
Marlon D. Manuel @ KA CARLO, and Melissa Concepcion Reyes @ KA LISA/RAMIL
to support the theory that elements of the New People's Army (NPA) perpetrated the
abduction of Jonas.15 In his Sworn Statement, Lipio admitted that he is a member of
the Communist Party of the Philippines (CPP)/NPA and that the NPA was behind the
abduction of Jonas. Lipio revealed that Jonas is known as @KA RAMON in the
communist movement. He claimed further that he and @KA RAMON belonged to the
Bulacan Party Committee, assigned to the White Area Committee doing intelligence
work for the movement under the leadership of Delfin de Guzman @ KA BASTE, and
that @KA RAMON was their political instructor and head of the intelligence unit in the
province.16
Sometime early April of 2007, Lipio was present in a meeting between @KA
BASTE and @KA RAMON. At this meeting, the two had a heated argument. For this
reason, @KA BASTE instructed Lipio to place @KA RAMON under surveillance as
they suspected him of pilfering funds from the party and of acting as a military agent.
17
Lipio further averred that upon instruction of @KA BASTE, he and a certain @KA
CARLO proceeded to Ever Gotesco Mall on April 28, 2007 to monitor the reported
meeting between @KA RAMON and other party members. At one o'clock in the
afternoon, Lipio and @KA CARLO (who stationed themselves near the entrance/exit of
the mall) saw a man, who they recognized as @KA RAMON, forcibly taken by four
men, brought outside of the mall, and shoved inside a Toyota Revo. Lipio further
alleged that he recognized two of the abductors as "@KA DANTE" and "@KA ENSO"
who he claims to be members of the CPP/NPA's guerilla unit (RYG).18
In his Sworn Statement, Manuel affirmed and substantiated Lipio's statement that
@KA RAMON and Jonas are one and the same person and that he is a member of the
communist movement in Bulacan. Manuel also corroborated Lipio's statement
regarding the circumstances of the abduction of @KA RAMON at Ever Gotesco Mall
on April 28, 2007; he confirmed that he and @ KA TIBO witnessed the abduction.19
Reyes, a rebel-returnee, provided in her Sworn Statement additional material
information regarding the disappearance of Jonas. Reyes alleged that she was
supposed to meet with @KA RAMON and another comrade in the movement (whom
she identified as @KA JO) to discuss the possibility of arranging a meeting with a
contact in the military. She averred that she met @KA JO at about 11:30 a.m. at the
Baliaug Transit Terminal, Cubao enroute to Ever Gotesco mall where they would meet
with a certain @KA RAMON. Reyes further narrated that they arrived about noon at
Ever Gotesco mall; @KA JO left her at McDonald's and told her to wait while he went
to look for @KA RAMON. After an hour, @KA JO arrived without @KA RAMON and
told Reyes to go home and just keep in touch through text messaging. Reyes alleged
further that she has not heard from @KA JO since.20
The CA Findings
In its July 17, 2008 decision, the CA found that the evidence the petitioner
presented failed to establish her claimed direct connection between the abductors of
Jonas and the military. The CA noted that the evidence does not show how license
plate number TAB 194 (supposedly attached to the 1991 Isuzu XLT vehicle impounded
at the 56th IB Headquarters) came to be attached to the getaway Toyota Revo on April
28, 2007, and whether the two license plates are one and the same at all. The CA
emphasized that the evidence does not indicate whether the abductors are members
of the military or the police or are civilians; if they are civilians, whether they acted on
their own or were following orders, and in the latter case, from whom.
The CA also found that the investigations by the Armed Forces of the Philippines
(AFP) and the PNP "leave much to be desired as they did not fully exert their effort to
unearth the truth and to bring the real culprits before the bar of justice."21 The CA held
that since the petitioner has established that the vehicle used in the abduction was
linked to a vehicle (with license plate number TAB 194) impounded at the
headquarters of the 56th IB, it became the burden of the AFP to exercise extraordinary
diligence to determine the why and the wherefore of the loss of the license plate in
their custody and its appearance in a vehicle (a maroon Toyota Revo) used in Jonas'
abduction. The CA also ruled that the AFP has the burden of "connect[ing] certain
loose ends"22 regarding the identity of @Ka Ramon (as referred to by the petitioner's
witnesses) and the allegation that @Ka Ramon is indeed Jonas in the "Order of
Battle."
As for the PNP-CIDG, the CA branded its investigation as "rather shallow" and
"conducted haphazardly." The CA took note that P/Supt. Estomo's investigation merely
delved into the administrative liability of Lt. Col. Clement, Lt. Col. Feliciano and Lt. Col.
Caga of the 56th IB, and failed to consider them as suspects in the abduction of Jonas.
The CA emphasized that the PNP-CIDG's investigation should focus on the criminal
aspect of the present case pursuant to Section 24 of Republic Act No. 6975, which
mandates the PNP to "investigate and prevent crimes, effect the arrest of criminal
offenders, bring offenders to justice and assist in their prosecution."
The CA also found P/Supt. Estomo's recommendation that appropriate charges be
filed against Mauro Mudlong (registered owner of the impounded 1991 Isuzu XLT
vehicle with plate license no. TAB 194) to be without any factual basis since no
evidence was presented to connect the latter to the loss of the license plate as well as
to the abduction of Jonas. The CA stressed that it could not find any valid reason why
Mudlong should be treated any differently from the three 56th IB colonels whom the
PNP-CIDG did not consider as suspects despite the established fact that license plate
no. TAB 194 was lost while in their custody.
On the PNP-CIDG's new information from Lipio who claimed to have seen Jonas
being abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla
unit RYG, and on Marlon Manuel, who corroborated Lipio's statements, the CA held
that steps should be taken by the PNP-CIDG to verify the veracity of these statements.
Notwithstanding the new information, the CA noted that the PNP-CIDG should not
discount the possible involvement of members of the AFP. Thus, the CA concluded
239
that the PNP must exert extraordinary diligence in following all possible leads to
resolve the crime committed against Jonas. Finally, the CA noted - based on the
Certification issued by the Assistant Chief State Prosecutor, DOJ dated March 5, 2008
- that no case has been referred by the PNP to the DOJ for preliminary investigation in
relation to the abduction and disappearance of Jonas. This is contrary to PNP's
manifest representation that it had already forwarded all pertinent and relevant
documents to the DOJ for the filing of appropriate charges against the suspects (i.e.,
@KA DANTE and @KA ENSO).
The CA also held that the petitions for habeas corpus and contempt as against
President Gloria Macapagal-Arroyo must be dropped since she enjoys the privilege of
immunity from suit. The CA ruled that the President's immunity from suit is a settled
doctrine citing David v. Arroyo.23
Our Ruling
Considering the findings of the CA and our review of the records of the present
case, we conclude that the PNP and the AFP have so far failed to conduct an
exhaustive and meaningful investigation into the disappearance of Jonas Burgos, and
to exercise the extraordinary diligence (in the performance of their duties) that the Rule
on the Writ of Amparo requires. Because of these investigative shortcomings, we
cannot rule on the case until a more meaningful investigation, using extraordinary
diligence, is undertaken.
From the records, we note that there are very significant lapses in the handling of
the investigation - among them the PNP-CIDG's failure to identify the cartographic
sketches of two (one male and one female) of the five abductors of Jonas based on
their interview of eyewitnesses to the abduction. This lapse is based on the information
provided to the petitioner by no less than State Prosecutor Emmanuel Velasco of the
DOJ who identified the persons who were possibly involved in the abduction, namely:
T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana Francisco (Philippine Air
Force), M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly
assigned with Military Intelligence Group 15 of Intelligence Service of the AFP.24 No
search and certification were ever made on whether these persons were AFP
personnel or in other branches of the service, such as the Philippine Air Force. As
testified to by the petitioner, no significant follow through was also made by the PNP-
CIDG in ascertaining the identities of the cartographic sketches of two of the abductors
despite the evidentiary leads provided by State Prosecutor Velasco of the DOJ.
Notably, the PNP-CIDG, as the lead investigating agency in the present case, did not
appear to have lifted a finger to pursue these aspects of the case.
We note, too, that no independent investigation appeared to have been made by
the PNP-CIDG to inquire into the veracity of Lipio's and Manuel's claims that Jonas
was abducted by a certain @KA DANTE and a certain @KA ENSO of the CPP/NPA
guerilla unit RYG. The records do not indicate whether the PNP-CIDG conducted a
follow-up investigation to determine the identities and whereabouts of @KA Dante and
@KA ENSO. These omissions were aggravated by the CA finding that the PNP has
yet to refer any case for preliminary investigation to the DOJ despite its representation
before the CA that it had forwarded all pertinent and relevant documents to the DOJ for
the filing of appropriate charges against @KA DANTE and @KA ENSO.
Based on these considerations, we conclude that further investigation and
monitoring should be undertaken. While significant leads have been provided to
investigators, the investigations by the PNP-CIDG, the AFP Provost Marshal, and even
the Commission on Human Rights (CHR) have been less than complete. The PNP-
CIDG's investigation particularly leaves much to be desired in terms of the
extraordinary diligence that the Rule on the Writ of Amparo requires. For this reason,
we resolve to refer the present case to the CHR as the Court's directly commissioned
agency tasked with the continuation of the investigation of the Burgos abduction and
the gathering of evidence, with the obligation to report its factual findings and
recommendations to this Court. We take into consideration in this regard that the CHR
is a specialized and independent agency created and empowered by the Constitution
to investigate all forms of human rights violations involving civil and political rights and
to provide appropriate legal measures for the protection of human rights of all persons
within the Philippines.25
Under this mandate, the CHR is tasked to conduct appropriate investigative
proceedings, including field investigations ' acting as the Court's directly commissioned
agency for purposes of the Rule on the Writ of Amparo ' with the tasks of: (a)
ascertaining the identities of the persons appearing in the cartographic sketches of the
two alleged abductors as well as their whereabouts; (b) determining based on records,
past and present, the identities and locations of the persons identified by State
Prosecutor Velasco alleged to be involved in the abduction of Jonas, namely: T/Sgt.
Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force), M/
Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly assigned with
Military Intelligence Group 15 of Intelligence Service of the AFP; further proceedings
and investigations, as may be necessary, should be made to pursue the lead allegedly
provided by State Prosecutor Velasco on the identities of the possible abductors; (c)
inquiring into the veracity of Lipio's and Manuel's claims that Jonas was abducted by a
certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG; (d)
determining based on records, past and present, as well as further investigation, the
identities and whereabouts of @KA DANTE and @KA ENSO; and (e) undertaking all
measures, in the investigation of the Burgos abduction that may be necessary to live
up to the extraordinary measures we require in addressing an enforced disappearance
under the Rule on the Writ of Amparo.
WHEREFORE, in the interest of justice and for the foregoing reasons, the Court
RESOLVES to:
(1) DIRECT the Commission on Human Rights to conduct appropriate investigative
proceedings, including field investigations ' acting as the Court's directly commissioned
agency for purposes of the Rule on the Writ of Amparo - with the tasks of: (a)
ascertaining the identities of the cartographic sketches of two of the abductors as well
as their whereabouts; (b) determining based on records, past and present, the
identities and locations of the persons identified by State Prosecutor Velasco alleged
to be involved in the abduction of Jonas namely: T/Sgt. Jason Roxas (Philippine
Army), Cpl. Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo
(Philippine Air Force), and an alias T.L., all reportedly assigned with Military
Intelligence Group 15 of Intelligence Service of the Armed Forces of the Philippines;
further proceedings and investigations, as may be necessary, should be made to
pursue the lead allegedly provided by State Prosecutor Velasco on the identities of the
possible abductors; (c) inquiring into the veracity of Lipio's and Manuel's claims that
Jonas was abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA
guerilla unit RYG; (d) determining based on records, past and present, as well as
240
further investigation, the identities and whereabouts of @KA DANTE and @KA ENSO;
and (e) undertaking all measures, in the investigation of the Burgos abduction, that
may be necessary to live up to the extraordinary measures we require in addressing
an enforced disappearance under the Rule on the Writ of Amparo;
(2) REQUIRE the incumbent Chiefs of the Armed Forces of the Philippines and the
Philippine National Police to make available and to provide copies, to the Commission
on Human Rights, of all documents and records in their possession and as the
Commission on Human Rights may require, relevant to the case of Jonas Joseph T.
Burgos, subject to reasonable regulations consistent with the Constitution and existing
laws;
(3) DIRECT the PNP-CIDG and its incumbent Chief to submit to the Commission
on Human Rights the records and results of the investigation the PNP-CIDG claimed
to have forwarded to the Department of Justice, which were not included in their
previous submissions to the Commission on Human Rights, including such records as
the Commission on Human Rights may require, pursuant to the authority granted
under this Resolution;
(4) Further DIRECT the PNP-CIDG to provide direct investigative assistance to the
Commission on Human Rights as it may require, pursuant to the authority granted
under this Resolution;
(5) AUTHORIZE the Commission on Human Rights to conduct a comprehensive
and exhaustive investigation that extends to all aspects of the case (not limited to the
specific directives as outlined above), as the extraordinary measures the case may
require under the Rule on the Writ of Amparo; and
(6) REQUIRE the Commission on Human Rights to submit to this Court a Report
with its recommendations, copy furnished the petitioner, the incumbent Chiefs of the
AFP, the PNP and the PNP-CIDG, and all the respondents, within ninety (90) days
from receipt of this Resolution.
In light of the retirement of Lt. General Alexander Yano and the reassignment of the
other respondents who have all been impleaded in their official capacities, all
subsequent resolutions and actions from this Court shall also be served on, and be
directly enforceable by, the incumbents of the impleaded offices/units whose official
action is necessary. The present respondents shall continue to be personally
impleaded for purposes of the responsibilities and accountabilities they may have
incurred during their incumbencies.
The dismissal of the petitions for Contempt and for the Issuance of a Writ of
Amparo with respect to President Gloria Macapagal-Arroyo is hereby AFFIRMED.
SO ORDERED.
[G.R. Nos. 184461-62, May 31 : 2011]
LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO AND LT. FRANCIS
MIRABELLE SAMSON, PETITIONERS, VS. ERLINDA T. CADAPAN AND
CONCEPCION E. EMPEO, RESPONDENTS.
[G.R. NO. 184495]
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEO, PETITIONERS, VS. GEN.
HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN. ROMEO
TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT.
COL. FELIPE ANOTADO, ET AL., RESPONDENTS.
[G.R. NO. 187109 ]
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEO, PETITIONERS, VS.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.GEN.
AVELINO RAZON, (RET.) GEN. ROMEO TOLENTINO, (RET.) GEN. JOVITO
PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO, DONALD
CAIGAS, A.K.A. ALAN OR ALVIN, ARNEL ENRIQUEZ AND LT. FRANCIS
MIRABELLE SAMSON, RESPONDENTS.
CARPIO MORALES, J.:
At 2:00 a.m. of June 26, 2006, armed men abducted Sherlyn Cadapan (Sherlyn),
Karen Empeo (Karen) and Manuel Merino (Merino) from a house in San Miguel,
Hagonoy, Bulacan. The three were herded onto a jeep bearing license plate RTF 597
that sped towards an undisclosed location.
Having thereafter heard nothing from Sherlyn, Karen and Merino, their respective
families scoured nearby police precincts and military camps in the hope of finding them
but the same yielded nothing.
On July 17, 2006, spouses Asher and Erlinda Cadapan and Concepcion Empeo
filed a petition for habeas corpus[1] before the Court, docketed as G.R. No. 173228,
impleading then Generals Romeo Tolentino and Jovito Palparan (Gen. Palparan), Lt.
Col. Rogelio Boac (Lt. Col. Boac), Arnel Enriquez and Lt. Francis Mirabelle Samson
(Lt. Mirabelle) as respondents. By Resolution of July 19, 2006,[2] the Court issued a
writ of habeas corpus, returnable to the Presiding Justice of the Court of Appeals.
The habeas corpus petition was docketed at the appellate court as CA-G.R. SP
No. 95303.
By Return of the Writ dated July 21, 2006,[3] the respondents in the habeas corpus
petition denied that Sherlyn, Karen and Merino are in the custody of the military. To
the Return were attached affidavits from the respondents, except Enriquez, who all
attested that they do not know Sherlyn, Karen and Merino; that they had inquired from
their subordinates about the reported abduction and disappearance of the three but
their inquiry yielded nothing; and that the military does not own nor possess a stainless
steel jeep with plate number RTF 597. Also appended to the Return was a certification
241
from the Land Transportation Office (LTO) that plate number RTF 597 had not yet
been manufactured as of July 26, 2006.
Trial thereupon ensued at the appellate court.
Witness Wilfredo Ramos, owner of the house where the three were abducted,
recounted that on June 26, 2006, while he was inside his house in Hagonoy, he
witnessed armed men wearing bonnets abduct Sherlyn and Karen from his house and
also abduct Merino on their way out; and that tied and blindfolded, the three were
boarded on a jeep and taken towards Iba in Hagonoy.[4]
Witness Alberto Ramirez (Ramirez) recalled that on June 28, 2006, while he was
sleeping in his house, he was awakened by Merino who, in the company of a group of
unidentified armed men, repaired to his house; that onboard a stainless jeep bearing
plate number RTF 597, he (Ramirez) was taken to a place in Mercado, Hagonoy and
was asked by one Enriquez if he knew "Sierra," "Tanya," "Vincent" and "Lisa"; and that
Enriquez described the appearance of two ladies which matched those of Sherlyn and
Karen, whom he was familiar with as the two had previously slept in his house.[5]
Another witness, Oscar Leuterio, who was himself previously abducted by armed
men and detained for five months, testified that when he was detained in Fort
Magsaysay in Nueva Ecija, he saw two women fitting the descriptions of Sherlyn and
Karen, and also saw Merino, his kumpare.[6]
Lt. Col. Boac, the then commander of Task Force Malolos, a special operations
team tasked to neutralize the intelligence network of communists and other armed
groups, declared that he conducted an inquiry on the abduction of Sherlyn, Karen and
Merino but his subordinates denied knowledge thereof.[7]
While he denied having received any order from Gen. Palparan to investigate the
disappearance of Sherlyn, Karen and Merino, his assistance in locating the missing
persons was sought by the mayor of Hagonoy.
Major Dominador Dingle, the then division adjutant of the Philippine Army's 7th
Infantry Division in Fort Magsaysay, denied that a certain Arnel Enriquez is a member
of his infantry as in fact his name did not appear in the roster of troops.[8]
Roberto Se, a supervisor of the Equipment, Plate Number and Supply Units of the
LTO, denied that his office manufactured and issued a plate number bearing number
RTF 597.[9]
On rebuttal, Lt. Mirabelle, Lt. Col. Boac and Gen. Palparan took the witness stand
as hostile witnesses.
Lt. Mirabelle testified that she did not receive any report on the abduction of
Sherlyn, Karen and Merino nor any order to investigate the matter. And she denied
knowing anything about the abduction of Ramirez nor who were Ka Tanya or Ka Lisa.
[10]
Gen. Palparan testified that during a debate in a televised program, he mentioned
the names of Ka Lisa and Ka Tanya as the ones involved in revolutionary tax
activities; and that he ordered Lt. Col. Boac to conduct an investigation on the
disappearance of Sherlyn, Karen and Merino.[11] When pressed to elaborate, he
stated: "I said that I got the report that it stated that it was Ka Tanya and Ka Lisa that, I
mean, that incident happened in Hagonoy, Bulacan was the abduction of Ka Lisa and
Ka Tanya, Your Honor, and another one. That was the report coming from the people
in the area."[12]
By Decision of March 29, 2007,[13] the Court of Appeals dismissed the habeas
corpus petition in this wise:
As Sherlyn Cadapan, Karen Empeo and Manuel Merino are indeed missing, the
present petition for habeas corpus is not the appropriate remedy since the main office
or function of the habeas corpus is to inquire into the legality of one's detention which
presupposes that respondents have actual custody of the persons subject of the
petition. The reason therefor is that the courts have limited powers, means and
resources to conduct an investigation. x x x.
It being the situation, the proper remedy is not a habeas corpus proceeding but
criminal proceedings by initiating criminal suit for abduction or kidnapping as a crime
punishable by law. In the case of Martinez v. Mendoza, supra, the Supreme Court
restated the doctrine that habeas corpus may not be used as a means of obtaining
evidence on the whereabouts of a person, or as a means of finding out who has
specifically abducted or caused the disappearance of a certain person. (emphasis and
underscoring supplied)
Thus the appellate court disposed:
WHEREFORE, the petition for habeas corpus is hereby DISMISSED, there being
no strong evidence that the missing persons are in the custody of the respondents.
The Court, however, further resolves to refer the case to the Commission on
Human Rights, the National Bureau of Investigation and the Philippine National Police
for separate investigations and appropriate actions as may be warranted by their
findings and to furnish the Court with their separate reports on the outcome of their
investigations and the actions taken thereon.
Let copies of this decision be furnished the Commission on Human Rights, the
National Bureau of Investigation and the Philippine National Police for their appropriate
actions.
SO ORDERED. (emphasis and underscoring supplied)
Petitioners in CA-G.R. SP No. 95303 moved for a reconsideration of the appellate
court's decision. They also moved to present newly discovered evidence consisting of
the testimonies of Adoracion Paulino, Sherlyn's mother-in-law who was allegedly
threatened by soldiers; and Raymond Manalo who allegedly met Sherlyn, Karen and
Merino in the course of his detention at a military camp.
During the pendency of the motion for reconsideration in CA-G.R. SP No. 95303,
Erlinda Cadapan and Concepcion Empeo filed before this Court a Petition for Writ
of Amparo[14] With Prayers for Inspection of Place and Production of Documents
dated October 24, 2007, docketed as G.R. No. 179994. The petition impleaded the
same respondents in the habeas corpus petition, with the addition of then President
Gloria Macapagal-Arroyo, then Armed Forces of the Phil. (AFP) Chief of Staff
Hermogenes Esperon Jr., then Phil. National Police (PNP) Chief Gen. Avelino Razon
(Gen. Razon), Lt. Col. Felipe Anotado (Lt. Col. Anotado) and Donald Caigas.
Then President Arroyo was eventually dropped as respondent in light of her
immunity from suit while in office.
242
 Petitioners in G.R. No. 179994 also prayed that they be allowed to inspect the
detention areas of the following places:
1 7th Infantry Division at Fort Magsaysay, Laur, Nueva Ecija
2 24th Infantry Batallion at Limay, Bataan
3 Army Detachment inside Valmocina Farm, Pinaod, San Ildefonso,
Bulacan
4 Camp Tecson, San Miguel, Bulacan
5 The Resthouse of Donald Caigas alias Allan or Alvin of the 24th
Infantry Batallion at Barangay Banog, Bolinao, Pangasinan
6 56th Infantry Batallion Headquarters at Iba, Hagonoy, Bulacan
7 Army Detachment at Barangay Mercado, Hagonoy, Bulacan
8 Beach House [at] Iba, Zambales used as a safehouse with a retired
military personnel as a caretaker;
By Resolution of October 25, 2007, the Court issued in G.R. No. 179994 a writ of
amparo returnable to the Special Former Eleventh Division of the appellate court, and
ordered the consolidation of the amparo petition with the pending habeas corpus
petition.
Docketed as CA-G.R. SP No. 002, respondents in the amparo case, through the
Solicitor General, filed their Return of the Writ on November 6, 2007.[15] In the
Return, Gen. Palparan, Lt. Col. Boac and Lt. Mirabelle reiterated their earlier
narrations in the habeas corpus case.
Gen. Hermogenes Esperon Jr. stated in the Return that he immediately caused to
investigate and verify the identities of the missing persons and was aware of the earlier
decision of the appellate court ordering the police, the Commission on Human Rights
and the National Bureau of Investigation to take further action on the matter.[16]
Lt. Col. Felipe Anotado, the then battalion commander of the 24th Infantry Battalion
based in Balanga City, Bataan, denied any involvement in the abduction. While the
24th Infantry Battalion detachment was reported to be a detention site of the missing
persons, Lt. Col. Anotado claimed that he found no untoward incident when he visited
said detachment. He also claimed that there was no report of the death of Merino per
his inquiry with the local police.[17]
Police Director General Avelino Razon narrated that he ordered the compilation of
pertinent records, papers and other documents of the PNP on the abduction of the
three, and that the police exhausted all possible actions available under the
circumstances.[18]
In addition to the witnesses already presented in the habeas corpus case,
petitioners called on Adoracion Paulino and Raymond Manalo to testify during the trial.
Adoracion Paulino recalled that her daughter-in-law Sherlyn showed up at home on
April 11, 2007, accompanied by two men and three women whom she believed were
soldiers. She averred that she did not report the incident to the police nor inform
Sherlyn's mother about the visit.[19]
Raymond Manalo (Manalo) claimed that he met the three abducted persons when
he was illegally detained by military men in Camp Tecson in San Miguel, Bulacan. His
group was later taken to a camp in Limay, Bataan. He recalled that Lt. Col. Anotado
was the one who interrogated him while in detention.[20]
In his Sinumpaang Salaysay,[21] Manalo recounted:
xxxx
59. Saan ka dinala mula sa Sapang?
Pagkalipas ng humigit kumulang 3 buwan sa Sapang, dinala ako sa Camp Tecson
sa ilalim ng 24th IB.
xxxx
Sa loob ng barracks ko nakilala si Sherlyn Cadapan, isang estudyante ng UP.
Ipinapalinis din sa akin ang loob ng barracks. Sa isang kwarto sa loob ng
barracks, may nakita akong babae na nakakadena[.] Noong una, pinagbawalan akong
makipag-usap sa kanya. Sa ikatlo o ikaapat na araw, nakausap ko yung babaeng
nagngangalang Sherlyn. Binigyan ko siya ng pagkain. Sinabi niya sa akin na dinukot
si[ya] sa Hagonoy, Bulacan at matindi ang tortyur na dinaranas niya. Sabi niya gusto
niyang umuwi at makasama ang kanyang magulang. Umiiyak siya. Sabi niya sa akin
ang buong pangalan niya ay Sherlyn Cadapan, mula sa Laguna. Sa araw tinatanggal
ang kanyang kadena at inuutusan si Sherlyn na maglaba.
xxxx
61. Sino ang mga nakilala mo sa Camp Tecson?
Dito sa Camp Tecson naming nakilala si `Allan Alvin' (maya-maya nalaman naming
na siya pala si Donald Caigas), ng 24th IB, na tinatawag na `master' o `commander' ng
kanyang mga tauhan.
Pagkalipas ng 2 araw matapos dalhin si Reynaldo sa Camp Tecson dumating sina
Karen Empeo at Manuel Merino na mga bihag din. Inilagay si Karen at Manuel sa
kwarto ni `Allan[.]' Kami naman ni Reynaldo ay nasa katabing kwarto, kasama si
Sherlyn.
xxxx
62. x x x x
Kaming mga lalake (ako, si Reynaldo at si Manuel) ay ginawang utusan, habang
sina Sherlyn at Karen ay ginawang labandera.
Si Sherlyn ang pinahirapan nina Mickey, Donald at Billy. Sabi ni Sherlyn sa akin na
siya'y ginahasa.
xxxx
63. x x x x
xxxx
Kaming lima (ako, si Reynaldo, si Sherlyn, si Karen at si [Merino]) ang dinala sa
Limay. Sinakay ako, si Reynaldo, si Sherlyn at si [Merino] sa isang stainless na jeep.
Si Karen ay isinakay sa itim na sasakyan ni Donald Caigas. x x x x
xxxx
66. Saan pa kayo dinala mula sa Limay, Bataan?
Mula sa Limay, kaming 5 (ako, si Reynaldo, si Sherlyn, Si Karen at si Manuel) ay
dinala sa isang safehouse sa Zambales, tabi ng dagat. x x x x (underscoring supplied;
italics and emphasis in the original)
243

On rebuttal, Lt. Col. Anotado and Col. Eduardo Boyles Davalan were called to the
witness stand.
Lt. Col. Anotado denied seeing or meeting Manalo. He posited that Manalo
recognized him because he was very active in conducting lectures in Bataan and even
appeared on television regarding an incident involving the 24th Infantry Batallion. He
contended that it was impossible for Manalo, Sherlyn, Karen and Merino to be
detained in the Limay detachment which had no detention area.
Col. Eduardo Boyles Davalan, the then chief of staff of the First Scout Ranger
Regiment in Camp Tecson, testified that the camp is not a detention facility, nor does it
conduct military operations as it only serves as a training facility for scout rangers. He
averred that his regiment does not have any command relation with either the 7th
Infantry Division or the 24th Infantry Battalion.[22]
By Decision of September 17, 2008,[23] the appellate court granted the Motion for
Reconsideration in CA-G.R. SP No. 95303 (the habeas corpus case) and ordered the
immediate release of Sherlyn, Karen and Merino in CA-G.R. SP No. 00002 (the
amparo case). Thus it disposed:
WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case), the Motion for
Reconsideration is GRANTED.
Accordingly, in both CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-G.R.
SP NO. 00002 (Amparo case), the respondents are thereby ordered to immediately
RELEASE, or cause the release, from detention the persons of Sher[lyn] Cadapan,
Karen Empeo and Manuel Merino.
Respondent Director General Avelino Razon is hereby ordered to resume [the]
PNP's unfinished investigation so that the truth will be fully ascertained and
appropriate charges filed against those truly responsible.
SO ORDERED.
In reconsidering its earlier Decision in the habeas corpus case, the appellate court
relied heavily on the testimony of Manalo in this wise:
With the additional testimony of Raymond Manalo, the petitioners have been able
to convincingly prove the fact of their detention by some elements in the military. His
testimony is a first hand account that military and civilian personnel under the 7th
Infantry Division were responsible for the abduction of Sherlyn Cadapan, Karen
Empeo and Manuel Merino. He also confirmed the claim of Oscar Leuterio that the
latter was detained in Fort Magsaysay. It was there where he (Leuterio) saw Manuel
Merino.
His testimony that Leuterio saw Manuel Merino in Fort Magsaysay may be hearsay
but not with respect to his meeting with, and talking to, the three desaparecidos. His
testimony on those points was no hearsay. Raymond Manalo saw the three with his
very own eyes as they were detained and tortured together. In fact, he claimed to be a
witness to the burning of Manuel Merino. In the absence of confirmatory proof,
however, the Court will presume that he is still alive.
The testimony of Raymond Manalo can no longer be ignored and brushed aside.
His narration and those of the earlier witnesses, taken together, constitute more than
substantial evidence warranting an order that the three be released from detention if
they are not being held for a lawful cause. They may be moved from place to place
but still they are considered under detention and custody of the respondents.
His testimony was clear, consistent and convincing. x x x.
xxxx
The additional testimonies of Lt. Col. Felipe Anotado and Col. Eduardo Boyles
Davalan were of no help either. Again, their averments were the same negative ones
which cannot prevail over those of Raymond Manalo. Indeed, Camp Tecson has been
utilized as a training camp for army scout rangers. Even Raymond Manalo noticed it
but the camp's use for purposes other than training cannot be discounted.
xxxx
In view of the foregoing, there is now a clear and credible evidence that the three
missing persons, [Sherlyn, Karen and Merino], are being detained in military camps
and bases under the 7th Infantry Division. Being not held for a lawful cause, they
should be immediately released from detention. (italic in the original; emphasis and
underscoring supplied)
Meanwhile, in the amparo case, the appellate court deemed it a superfluity to issue
any inspection order or production order in light of the release order. As it earlier ruled
in the habeas corpus case, it found that the three detainees' right to life, liberty and
security was being violated, hence, the need to immediately release them, or cause
their release. The appellate court went on to direct the PNP to proceed further with its
investigation since there were enough leads as indicated in the records to ascertain
the truth and file the appropriate charges against those responsible for the abduction
and detention of the three.
Lt. Col. Rogelio Boac, et al. challenged before this Court, via petition for review, the
September 17, 2008 Decision of the appellate court. This was docketed as G.R. Nos.
184461-62, the first above-captioned case- subject of the present Decision.
Erlinda Cadapan and Concepcion Empeo, on the other hand, filed their own
petition for review also challenging the same September 17, 2008 Decision of the
appellate court only insofar as the amparo aspect is concerned. Their petition,
docketed as G.R. No. 179994, was redocketed as G.R. No. 184495, the second
above-captioned case.
By Resolution of June 15, 2010, the Court ordered the consolidation of G.R. No.
184495 with G.R. Nos. 1844461-62.[24]
Meanwhile, Erlinda Cadapan and Concepcion Empeo filed before the appellate
court a Motion to Cite Respondents in Contempt of Court for failure of the respondents
in the amparo and habeas corpus cases to comply with the directive of the appellate
court to immediately release the three missing persons. By Resolution of March 5,
2009,[25] the appellate court denied the motion, ratiocinating thus:
While the Court, in the dispositive portion, ordered the respondents "to immediately
RELEASE, or cause the release, from detention the persons of Sherlyn Cadapan,
Karen Empeo and Manuel Merino," the decision is not ipso facto executory. The
use of the term "immediately" does not mean that that it is automatically executory.
There is nothing in the Rule on the Writ of Amparo which states that a decision
rendered is immediately executory. x x x.
244
 Neither did the decision become final and executory considering that both parties
questioned the Decision/Resolution before the Supreme Court. x x x.
Besides, the Court has no basis. The petitioners did not file a motion for execution
pending appeal under Section 2 of Rule 39. There being no motion, the Court could
not have issued, and did not issue, a writ of execution. x x x. (underscoring supplied)
Via a petition for certiorari filed on March 30, 2009 before this Court, Erlinda
Cadapan and Concepcion Empeo challenged the appellate court's March 5, 2009
Resolution denying their motion to cite respondents in contempt. The petition was
docketed as G.R. No. 187109, the last above-captioned case subject of the present
Decision.
Only Lt. Col. Anotado and Lt. Mirabelle remained of the original respondents in the
amparo and habeas corpus cases as the other respondents had retired from
government service.[26] The AFP has denied that Arnel Enriquez was a member of
the Philippine Army.[27] The whereabouts of Donald Caigas remain unknown.[28]
In G.R. Nos. 184461-62, petitioners posit as follows:
I
...THE COURT OF APPEALS GROSSLY MISAPPRECIATED THE VALUE OF THE
TESTIMONY OF RAYMOND MANALO.
II
THE PETITION[S] FOR HABEAS CORPUS AND WRIT OF AMPARO SHOULD BE
DISMISSED BECAUSE RESPONDENTS FAILED TO PROVE BY THE REQUIRED
QUANTUM OF EVIDENCE THAT PETITIONERS HAVE SHERLYN CADAPAN,
KAREN EMPEO AND MANUEL MERINO ARE IN THEIR CUSTODY.
III
PETITIONERS' DENIALS PER SE SHOULD NOT HAVE BEEN TAKEN AGAINST
THEM BECAUSE THEY DID NOT REALLY HAVE ANY INVOLVEMENT IN THE
ALLEGED ABDUCTION; MOREOVER, THE SUPPOSED INCONSISTENCIES IN
THEIR TESTIMONIES ARE ON POINTS IRRELEVANT TO THE PETITION.
IV
THE DISPOSITIVE PORTION OF THE ASSAILED DECISION IS VAGUE AND
INCONGRUENT WITH THE FINDINGS OF THE COURT OF APPEALS.
V
THE COURT OF APPEALS IGNORED AND FAILED TO RULE UPON THE FATAL
PROCEDURAL INFIRMITIES IN THE PETITION FOR WRIT OF AMPARO.[29]
In G.R. No. 184495, petitioners posit as follows:
5 The Court of Appeals erred in not granting the Interim Relief for
Inspection of Places;
6 The Court of Appeals erred in not granting the Interim Relief for
Production of Documents;
7 The Court of Appeals erred in not finding that the Police Director
Gen. Avelino Razon did not make extraordinary diligence in investigating
the enforced disappearance of the aggrieved parties...
8 The Court of Appeals erred in not finding that this was not the
command coming from the highest echelon of powers of the Armed Forces
of the Philippines, Philippine Army and the Seventh Infantry Division of the
Philippine Army to enforcibly disappear [sic] the aggrieved parties...
9 The Court of Appeals erred in dropping President Gloria Macapagal
Arroyo as party respondent in this case;
10 The Court of Appeals erred in not finding that President Gloria
Macapagal Arroyo had command responsibility in the enforced
disappearance and continued detention of the three aggrieved parties...
11 The Court of Appeals erred in not finding that the Armed Forces
Chief of Staff then Hermogenes Esperon and the Present Chief of Staff as
having command responsibility in the enforced disappearance and
continued detention of the three aggrieved parties...[30]
In G.R. No. 187109, petitioners raise the following issues:
[1] Whether... the decision in the Court of Appeals has become final and
executory[.]
[2] Whether...there is a need to file a motion for execution in a Habeas Corpus
decision or in an Amparo decision[.]
[3] Whether...an appeal can stay the decision of a Habeas Corpus [case] [or] an
Amparo case[.][31]
Essentially, the consolidated petitions present three primary issues, viz: a) whether
the testimony of Raymond Manalo is credible; b) whether the chief of the AFP, the
commanding general of the Philippine Army, as well as the heads of the concerned
units had command responsibility over the abduction and detention of Sherlyn, Karen
and Merino; and c) whether there is a need to file a motion for execution to cause the
release of the aggrieved parties.
G.R. Nos. 184461-62
Petitioners Lt. Col. Boac, et al. contend that the appellate court erred in giving full
credence to the testimony of Manalo who could not even accurately describe the
structures of Camp Tecson where he claimed to have been detained along with
Sherlyn, Karen and Merino. They underscore that Camp Tecson is not under the
jurisdiction of the 24th Infantry Batallion and that Manalo's testimony is incredible and
full of inconsistencies.[32]
In Secretary of National Defense v. Manalo,[33] an original petition for Prohibition,
Injunction and Temporary Restraining Order which was treated as a petition under the
Amparo Rule, said Rule having taken effect during the pendency of the petition, the
Court ruled on the truthfulness and veracity of the personal account of Manalo which
included his encounter with Sherlyn, Kara and Merino while on detention. Thus it held:
245
 We affirm the factual findings of the appellate court, largely based on respondent
Raymond Manalo's affidavit and testimony, viz:
x x x x.
We reject the claim of petitioners that respondent Raymond Manalo's statements
were not corroborated by other independent and credible pieces of evidence.
Raymond's affidavit and testimony were corroborated by the affidavit of respondent
Reynaldo Manalo. The testimony and medical reports prepared by forensic specialist
Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on
respondents, also corroborate respondents' accounts of the torture they endured while
in detention. Respondent Raymond Manalo's familiarity with the facilities in Fort
Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col.
Jimenez to be the "Division Training Unit," firms up respondents' story that they were
detained for some time in said military facility. (citations omitted; emphasis and
underscoring supplied)
On Manalo's having allegedly encountered Sherlyn, Karen and Merino while on
detention, the Court in the immediately cited case synthesized his tale as follows:
The next day, Raymond's chains were removed and he was ordered to clean
outside the barracks. It was then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna. She told him that she was a student of the University of the
Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been
subjected to severe torture and raped. She was crying and longing to go home and be
with her parents. During the day, her chains were removed and she was made to do
the laundry.
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and
Manuel were put in the room with "Allan" whose name they later came to know as
Donald Caigas, called "master" or "commander" by his men in the 24th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond
and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their
chains were removed, but were put back on at night. They were threatened that if they
escaped, their families would all be killed.
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the
detainees that they should be thankful they were still alive and should continue along
their "renewed life." Before the hearing of November 6 or 8, 2006, respondents were
brought to their parents to instruct them not to attend the hearing. However, their
parents had already left for Manila. Respondents were brought back to Camp Tecson.
They stayed in that camp from September 2006 to November 2006, and Raymond
was instructed to continue using the name "Oscar" and holding himself out as a
military trainee. He got acquainted with soldiers of the 24th Infantry Battalion whose
names and descriptions he stated in his affidavit.
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel,
were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were
many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of
the battalion stayed with them. While there, battalion soldiers whom Raymond knew
as "Mar" and "Billy" beat him up and hit him in the stomach with their guns. Sherlyn
and Karen also suffered enormous torture in the camp. They were all made to clean,
cook, and help in raising livestock.
Raymond recalled that when "Operation Lubog" was launched, Caigas and some
other soldiers brought him and Manuel with them to take and kill all sympathizers of
the NPA. They were brought to Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA members
in his house. Another time, in another "Operation Lubog," Raymond was brought to
Barangay Orion in a house where NPA men stayed. When they arrived, only the old
man of the house who was sick was there. They spared him and killed only his son
right before Raymond's eyes.
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house. Like in Limay, the five
detainees were made to do errands and chores. They stayed in Zambales from May 8
or 9, 2007 until June 2007.
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the camp.
Raymond narrated what he witnessed and experienced in the camp, viz:
x x x x.[34] (emphasis and underscoring supplied)
The Court takes judicial notice of its Decision in the just cited Secretary of National
Defense v. Manalo[35] which assessed the account of Manalo to be a candid and
forthright narrative of his and his brother Reynaldo's abduction by the military in 2006;
and of the corroborative testimonies, in the same case, of Manalo's brother Reynaldo
and a forensic specialist, as well as Manalo's graphic description of the detention
area. There is thus no compelling reason for the Court, in the present case, to disturb
its appreciation in Manalo's testimony. The outright denial of petitioners Lt. Col. Boac,
et al. thus crumbles.
Petitioners go on to point out that the assailed Decision of the appellate court is
"vague and incongruent with [its] findings" for, so they contend, while the appellate
court referred to the perpetrators as "misguided and self-righteous civilian and military
elements of the 7th Infantry Division," it failed to identify who these perpetrators are.
Moreover, petitioners assert that Donald Caigas and Arnel Enriquez are not members
of the AFP. They furthermore point out that their co-petitioners Generals Esperon,
Tolentino and Palparan have already retired from the service and thus have no more
control of any military camp or base in the country.[36]
There is nothing vague and/or incongruent about the categorical order of the
appellate court for petitioners to release Sherlyn, Karen and Merino. In its discourse,
the appellate court merely referred to "a few misguided self-righteous people who
resort to the extrajudicial process of neutralizing those who disagree with the country's
democratic system of government." Nowhere did it specifically refer to the members of
the 7th Infantry Division as the "misguided self-righteous" ones.
Petitioners finally point out that the parents of Sherlyn and Karen do not have the
requisite standing to file the amparo petition on behalf of Merino. They call attention to
the fact that in the amparo petition, the parents of Sherlyn and Karen merely indicated
246
that they were "concerned with Manuel Merino" as basis for filing the petition on his
behalf.[37]
Section 2 of the Rule on the Writ of Amparo[38] provides:
The petition may be filed by the aggrieved party or by any qualified person or entity
in the following order:
(a) Any member of the immediate family, namely: the spouse, children and parents
of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party within
the fourth civil degree of consanguinity or affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any concerned citizen, organization, association or institution, if there is no
known member of the immediate family or relative of the aggrieved party.
Indeed, the parents of Sherlyn and Karen failed to allege that there were no known
members of the immediate family or relatives of Merino. The exclusive and successive
order mandated by the above-quoted provision must be followed. The order of priority
is not without reason--"to prevent the indiscriminate and groundless filing of petitions
for amparo which may even prejudice the right to life, liberty or security of the
aggrieved party."[39]
The Court notes that the parents of Sherlyn and Karen also filed the petition for
habeas corpus on Merino's behalf. No objection was raised therein for, in a habeas
corpus proceeding, any person may apply for the writ on behalf of the aggrieved party.
[40]
It is thus only with respect to the amparo petition that the parents of Sherlyn and
Karen are precluded from filing the application on Merino's behalf as they are not
authorized parties under the Rule.
G.R. No. 184495
Preliminarily, the Court finds the appellate court's dismissal of the petitions against
then President Arroyo well-taken, owing to her immunity from suit at the time the
habeas corpus and amparo petitions were filed.[41]
Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the high office of
the President, the Head of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance
of his official duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness in the
discharge of the many great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the Government. x x x [42]
Parenthetically, the petitions are bereft of any allegation that then President Arroyo
permitted, condoned or performed any wrongdoing against the three missing persons.
On the issue of whether a military commander may be held liable for the acts of his
subordinates in an amparo proceeding, a brief discussion of the concept of command
responsibility and its application insofar as amparo cases already decided by the Court
is in order.
Rubrico v. Macapagal Arroyo[43] expounded on the concept of command
responsibility as follows:
The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas, "command
responsibility," in its simplest terms, means the "responsibility of commanders for
crimes committed by subordinate members of the armed forces or other persons
subject to their control in international wars or domestic conflict." In this sense,
command responsibility is properly a form of criminal complicity. The Hague
Conventions of 1907 adopted the doctrine of command responsibility, foreshadowing
the present-day precept of holding a superior accountable for the atrocities committed
by his subordinates should he be remiss in his duty of control over them. As then
formulated, command responsibility is "an omission mode of individual criminal
liability," whereby the superior is made responsible for crimes committed by his
subordinates for failing to prevent or punish the perpetrators (as opposed to crimes he
ordered). (citations omitted; emphasis in the original; underscoring supplied)[44]
It bears stressing that command responsibility is properly a form of criminal
complicity,[45] and thus a substantive rule that points to criminal or administrative
liability.
An amparo proceeding is not criminal in nature nor does it ascertain the criminal
liability of individuals or entities involved. Neither does it partake of a civil or
administrative suit.[46] Rather, it is a remedial measure designed to direct specified
courses of action to government agencies to safeguard the constitutional right to life,
liberty and security of aggrieved individuals.[47]
Thus Razon Jr. v. Tagitis [48] enlightens:
[An amparo proceeding] does nor determine guilt nor pinpoint criminal culpability
for the disappearance [threats thereof or extrajudicial killings]; it determines
responsibility, or at least accountability, for the enforced disappearance...for purposes
of imposing the appropriate remedies to address the disappearance...[49] (emphasis
and underscoring supplied)
Further, Tagitis defines what constitutes "responsibility" and "accountability," viz:
x x x. Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among
them, the directive to file the appropriate criminal and civil cases against the
responsible parties in the proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who exhibited involvement in
the enforced disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry,
but have failed to discharge, the burden of extraordinary diligence in the investigation
of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo
is justified by our primary goal of addressing the disappearance, so that the life of the
victim is preserved and his liberty and security are restored.[50] (emphasis in the
original; underscoring supplied)
247
 Rubrico categorically denies the application of command responsibility in amparo
cases to determine criminal liability.[51] The Court maintains its adherence to this
pronouncement as far as amparo cases are concerned.
Rubrico, however, recognizes a preliminary yet limited application of command
responsibility in amparo cases to instances of determining the responsible or
accountable individuals or entities that are duty-bound to abate any transgression on
the life, liberty or security of the aggrieved party.
If command responsibility were to be invoked and applied to these proceedings, it
should, at most, be only to determine the author who, at the first instance, is
accountable for, and has the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial measures that may be
appropriate under the premises to protect rights covered by the writ of amparo. As
intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if there
be any.[52] (emphasis and underscoring supplied)
In other words, command responsibility may be loosely applied in amparo cases in
order to identify those accountable individuals that have the power to effectively
implement whatever processes an amparo court would issue.[53] In such application,
the amparo court does not impute criminal responsibility but merely pinpoint the
superiors it considers to be in the best position to protect the rights of the aggrieved
party.
Such identification of the responsible and accountable superiors may well be a
preliminary determination of criminal liability which, of course, is still subject to further
investigation by the appropriate government agency.
Relatedly, the legislature came up with Republic Act No. 9851[54] (RA 9851) to
include command responsibility as a form of criminal complicity in crimes against
international humanitarian law, genocide and other crimes.[55] RA 9851 is thus the
substantive law that definitively imputes criminal liability to those superiors who,
despite their position, still fail to take all necessary and reasonable measures within
their power to prevent or repress the commission of illegal acts or to submit these
matters to the competent authorities for investigation and prosecution.
The Court finds that the appellate court erred when it did not specifically name the
respondents that it found to be responsible for the abduction and continued detention
of Sherlyn, Karen and Merino. For, from the records, it appears that the responsible
and accountable individuals are Lt. Col. Anotado, Lt. Mirabelle, Gen. Palparan, Lt. Col.
Boac, Arnel Enriquez and Donald Caigas. They should thus be made to comply with
the September 17, 2008 Decision of the appellate court to IMMEDIATELY RELEASE
Sherlyn, Karen and Merino.
The petitions against Generals Esperon, Razon and Tolentino should be dismissed
for lack of merit as there is no showing that they were even remotely accountable and
responsible for the abduction and continued detention of Sherlyn, Karen and Merino.
G.R. No. 187109.
Contrary to the ruling of the appellate court, there is no need to file a motion for
execution for an amparo or habeas corpus decision. Since the right to life, liberty and
security of a person is at stake, the proceedings should not be delayed and execution
of any decision thereon must be expedited as soon as possible since any form of
delay, even for a day, may jeopardize the very rights that these writs seek to
immediately protect.
The Solicitor General's argument that the Rules of Court supplement the Rule on
the Writ of Amparo is misplaced. The Rules of Court only find suppletory application in
an amparo proceeding if the Rules strengthen, rather than weaken, the procedural
efficacy of the writ. As it is, the Rule dispenses with dilatory motions in view of the
urgency in securing the life, liberty or security of the aggrieved party. Suffice it to state
that a motion for execution is inconsistent with the extraordinary and expeditious
remedy being offered by an amparo proceeding.
In fine, the appellate court erred in ruling that its directive to immediately release
Sherlyn, Karen and Merino was not automatically executory. For that would defeat the
very purpose of having summary proceedings[56] in amparo petitions. Summary
proceedings, it bears emphasis, are immediately executory without prejudice to further
appeals that may be taken therefrom.[57]
WHEREFORE, in light of the foregoing discussions, the Court renders the following
judgment:
1. The Petitions in G.R. Nos. 184461-62 and G.R. No. 184495 are DISMISSED.
The Decision of the Court of Appeals dated September 17, 2008 is AFFIRMED with
modification in that respondents in G.R. No. 184495, namely Lt. Col. Felipe Anotado,
Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Arnel
Enriquez and Donald Caigas are ordered to immediately release Sherlyn Cadapan,
Karen Empeo and Manuel Merino from detention.
The petitions against Generals Esperon, Razon and Tolentino are DISMISSED.
2. The petition in G.R. No. 187109 is GRANTED. The named respondents are
directed to forthwith comply with the September 17, 2008 Decision of the appellate
court. Owing to the retirement and/or reassignment to other places of assignment of
some of the respondents herein and in G.R. No. 184495, the incumbent commanding
general of the 7th Infantry Division and the incumbent battalion commander of the 24th
Infantry Battalion, both of the Philippine Army, are enjoined to fully ensure the release
of Sherlyn Cadapan, Karen Empeo and Manuel Merino from detention.
Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito
Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas shall remain
personally impleaded in the petitions to answer for any responsibilities and/or
accountabilities they may have incurred during their incumbencies.
Let copies of this Decision and the records of these cases be furnished the
Department of Justice (DOJ), the Philippine National Police (PNP) and the Armed
Forces of the Philippines (AFP) for further investigation to determine the respective
criminal and administrative liabilities of respondents.
All the present petitions are REMANDED to the Court of Appeals for appropriate
action, directed at monitoring of the DOJ, PNP and AFP investigations and the
validation of their results.
SO ORDERED.
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G.R. No. 204528 : February 19, 2013
SECRETARY LEILA M. DE LIMA, DIRECTOR NONNATUS R. ROJAS and DEPUTY
DIRECTOR REYNALDO 0. ESMERALDA, Petitioners, v. MAGTANGGOL B.
GATDULA, Respondents.
RESOLUTION
LEONEN, J.:
Submitted for our resolution is a prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction to enjoin "the Regional Trial Court, Branch
26, in Manila from implementing its Decision x x x in Civil Case No. 12-127405
granting respondent's application for the issuance of inspection and production orders
x x x."1 This is raised through a Petition for Review on Certiorari under Rule 45 from
the "Decision" rendered by the Regional Trial Court dated 20 March 2012.
From the records, it appears that on 27 February 2012, respondent Magtanggol B.
Gatdula filed a Petition for the Issuance of a Writ of Amparo in the Regional Trial Court
of Manila.2 This case was docketed as In the Matter of the Petition for Issuance of Writ
of Amparo of Atty. Magtanggol B. Gatdula, SP No. 12-127405. It was raffled to the sala
of Judge Silvino T. Pampilo, Jr. on the same day.
The Amparo was directed against petitioners Justice Secretary Leila M. De Lima,
Director Nonnatus R. Rojas and Deputy Director Reynaldo O. Esmeralda of the
National Bureau of Investigation (DE LIMA, ET AL. for brevity). Gatdula wanted De
Lima, et al. "to cease and desist from framing up Petitioner [Gatdula] for the fake
ambush incident by filing bogus charges of Frustrated Murder against Petitioner
[Gatdula] in relation to the alleged ambush incident."3
Instead of deciding on whether to issue a Writ of Amparo, the judge issued
summons and ordered De Lima, et al. to file an Answer.4 He also set the case for
hearing on 1 March 2012. The hearing was held allegedly for determining whether a
temporary protection order may be issued. During that hearing, counsel for De Lima, et
al. manifested that a Return, not an Answer, is appropriate for Amparo cases.5
In an Order dated 2 March 2012,6 Judge Pampilo insisted that "[s]ince no writ has
been issued, return is not the required pleading but answer".7 The judge noted that the
Rules of Court apply suppletorily in Amparo cases.8 He opined that the Revised Rules
of Summary Procedure applied and thus required an Answer.9
Judge Pampilo proceeded to conduct a hearing on the main case on 7 March
2012.10 Even without a Return nor an Answer, he ordered the parties to file their
respective memoranda within five (5) working days after that hearing. Since the period
to file an Answer had not yet lapsed by then, the judge also decided that the
memorandum of De Lima, et al. would be filed in lieu of their Answer.11
On 20 March 2012, the RTC rendered a "Decision" granting the issuance of the
Writ of Amparo. The RTC also granted the interim reliefs prayed for, namely: temporary
protection, production and inspection orders. The production and inspection orders
were in relation to the evidence and reports involving an on-going investigation of the
attempted assassination of Deputy Director Esmeralda. It is not clear from the records
how these pieces of evidence may be related to the alleged threat to the life, liberty or
security of the respondent Gatdula.
In an Order dated 8 October 2012, the RTC denied the Motion for Reconsideration
dated 23 March 2012 filed by De Lima, et al.
Petitioners Sec. De Lima, et al. thus came to this Court assailing the RTC
"Decision" dated 20 March 2012 through a Petition for Review on Certiorari (With Very
Urgent Application for the Issuance of a Temporary Restraining Order/Writ of
Preliminary Injunction) via Rule 45, as enunciated in Section 19 of the Rule on the Writ
of Amparo (A.M. No. 07-9- 12-SC, 25 September 2007),
SEC. 19. Appeal. Any party may appeal from the final judgment or order to the
Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.
x x x (Emphasis supplied).
It is the Courts view that the "Decision" dated 20 March 2012 granting the writ of
Amparo is not the judgment or final order contemplated under this rule. Hence, a
Petition for Review under Rule 45 may not yet be the proper remedy at this time.
The RTC and the Parties must understand the nature of the remedy of Amparo to
put its procedures in the proper context.
The remedy of the Writ of Amparo is an equitable and extraordinary remedy to
safeguard the right of the people to life, liberty12 and security13 as enshrined in the
1987 Constitution.14 The Rule on the Writ of Amparo was issued as an exercise of the
Supreme Court's power to promulgate rules concerning the protection and
enforcement of constitutional rights.15 It aims to address concerns such as, among
others, extrajudicial killings and enforced disappearances.16
Due to the delicate and urgent nature of these controversies, the procedure was
devised to afford swift but decisive relief.17 It is initiated through a petition18 to be filed
in a Regional Trial Court, Sandiganbayan, the Court of Appeals, or the Supreme Court.
19 The judge or justice then makes an "immediate" evaluation20 of the facts as
alleged in the petition and the affidavits submitted "with the attendant circumstances
detailed".21 After evaluation, the judge has the option to issue the Writ of Amparo22 or
immediately dismiss the case. Dismissal is proper if the petition and the supporting
affidavits do not show that the petitioner's right to life, liberty or security is under threat
or the acts complained of are not unlawful. On the other hand, the issuance of the writ
itself sets in motion presumptive judicial protection for the petitioner. The court
compels the respondents to appear before a court of law to show whether the grounds
for more permanent protection and interim reliefs are necessary.
The respondents are required to file a Return23 after the issuance of the writ
through the clerk of court. The Return serves as the responsive pleading to the
petition.24 Unlike an Answer, the Return has other purposes aside from identifying the
issues in the case. Respondents are also required to detail the actions they had taken
to determine the fate or whereabouts of the aggrieved party.
If the respondents are public officials or employees, they are also required to state
the actions they had taken to: (i) verify the identity of the aggrieved party; (ii) recover
and preserve evidence related to the death or disappearance of the person identified
in the petition; (iii) identify witnesses and obtain statements concerning the death or
disappearance; (iv) determine the cause, manner, location, and time of death or
disappearance as well as any pattern or practice that may have brought about the
death or disappearance; and (vi) bring the suspected offenders before a competent
court.25 Clearly these matters are important to the judge so that s/he can calibrate the
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means and methods that will be required to further the protections, if any, that will be
due to the petitioner.
There will be a summary hearing26 only after the Return is filed to determine the
merits of the petition and whether interim reliefs are warranted. If the Return is not
filed, the hearing will be done ex parte.27 After the hearing, the court will render the
judgment within ten (10) days from the time the petition is submitted for decision.28
If the allegations are proven with substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and appropriate.29 The
judgment should contain measures which the judge views as essential for the
continued protection of the petitioner in the Amparo case. These measures must be
detailed enough so that the judge may be able to verify and monitor the actions taken
by the respondents. It is this judgment that could be subject to appeal to the Supreme
Court via Rule 45.30 After the measures have served their purpose, the judgment will
be satisfied. In Amparo cases, this is when the threats to the petitioners life, liberty and
security cease to exist as evaluated by the court that renders the judgment.
Parenthetically, the case may also be terminated through consolidation should a
subsequent case be filed either criminal or civil.31 Until the full satisfaction of the
judgment, the extraordinary remedy of Amparo allows vigilant judicial monitoring to
ensure the protection of constitutional rights.
The "Decision" dated 20 March 2012 assailed by the petitioners could not be the
judgment or final order that is appealable under Section 19 of the Rule on the Writ of
Amparo. This is clear from the tenor of the dispositive portion of the "Decision", to
wit:library
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the Writ of
Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the service of
the Writ of Amparo in an expeditious manner upon all concerned, and for this purpose
may call upon the assistance of any military or civilian agency of the government.
This "Decision" pertained to the issuance of the writ under Section 6 of the Rule on
the Writ of Amparo, not the judgment under Section 18. The "Decision" is thus an
interlocutory order, as suggested by the fact that temporary protection, production and
inspection orders were given together with the decision. The temporary protection,
production and inspection orders are interim reliefs that may be granted by the court
upon filing of the petition but before final judgment is rendered.32
The confusion of the parties arose due to the procedural irregularities in the RTC.
First, the insistence on filing of an Answer was inappropriate. It is the Return that
serves as the responsive pleading for petitions for the issuance of Writs of Amparo.
The requirement to file an Answer is contrary to the intention of the Court to provide a
speedy remedy to those whose right to life, liberty and security are violated or are
threatened to be violated. In utter disregard of the Rule on the Writ of Amparo, Judge
Pampilo insisted on issuing summons and requiring an Answer.
Judge Pampilos basis for requiring an Answer was mentioned in his Order dated 2
March 2012:library
Under Section 25 of the same rule [on the Writ of Amparo], the Rules of Court shall
apply suppletorily insofar as it is not inconsistent with the said rule.
Considering the summary nature of the petition, Section 5 of the Revised Rules of
Summary Procedure shall apply.
Section 5. Answer Within ten (10) days from service of summons, the defendant
shall file his Answer to the complaint and serve a copy thereof on the plaintiff. x x x
WHEREFORE, based on the foregoing, the respondents are required to file their
Answer ten (days) from receipt of this Order.33
The 1991 Revised Rules of Summary Procedure is a special rule that the Court
has devised for the following circumstances:library
SECTION 1. Scope. This rule shall govern the summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial
Courts, and the Municipal Circuit Trial Courts in the following cases falling within their
jurisdiction:library
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, x x x.
(2) All other cases, except probate proceedings, where the total amount of the
plaintiffs claim does not exceed x x x.
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six months, or a fine not exceeding one
thousand pesos (P1,000.00), or both, x x x.
xxx
It is clear from this rule that this type of summary procedure only applies to MTC/
MTCC/MCTCs. It is mind-boggling how this rule could possibly apply to proceedings in
an RTC. Aside from that, this Court limited the application of summary procedure to
certain civil and criminal cases. A writ of Amparo is a special proceeding. It is a remedy
by which a party seeks to establish a status, a right or particular fact.34 It is not a civil
nor a criminal action, hence, the application of the Revised Rule on Summary
Procedure is seriously misplaced.
The second irregularity was the holding of a hearing on the main case prior to the
issuance of the writ and the filing of a Return. Without a Return, the issues could not
have been properly joined.
Worse, is the trial courts third irregularity: it required a memorandum in lieu of a
responsive pleading (Answer) of De Lima, et al.
The Return in Amparo cases allows the respondents to frame the issues subject to
a hearing. Hence, it should be done prior to the hearing, not after. A memorandum, on
the other hand, is a synthesis of the claims of the party litigants and is a final pleading
usually required before the case is submitted for decision. One cannot substitute for
the other since these submissions have different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under the Rule on the
Writ of Amparo.35
250
 The fourth irregularity was in the "Decision" dated 20 March 2012 itself. In the body
of its decision, the RTC stated:library
"Accordingly this court GRANTS the privilege of the writ and the interim reliefs
prayed for by the petitioner." (Emphasis supplied).
This gives the impression that the decision was the judgment since the
phraseology is similar to Section 18 of the Rule on the Writ of Amparo:library
(1) NULLIFY all orders that are subject of this Resolution issued by Judge Silvino T.
Pampilo, Jr. after respondent Gatdula filed the Petition for the Issuance of a Writ of
Amparo;
(2) DIRECT Judge Pampilo to determine within forty-eight (48) hours from his
receipt of this Resolution whether the issuance of the Writ of Amparo is proper on the
basis of the petition and its attached affidavits.

"SEC. 18. Judgment. The court shall render judgment within ten (10) days from the
time the petition is submitted for decision. If the allegations in the petition are proven
by substantial evidence, the court shall grant the privilege of the writ and such reliefs
as may be proper and appropriate; otherwise, the privilege shall be
denied." (Emphasis supplied).
The Clerk of Court is DIRECTED to cause the personal service of this Resolution
on Judge Silvino T. Pampilo, Jr. of Branch 26 of the Regional Trial Court of Manila for
his proper guidance together with a WARNING that further deviation or improvisation
from the procedure set in A.M. No. 07-9-12-SC shall be meted with severe
consequences.

The privilege of the Writ of Amparo should be distinguished from the actual order SO ORDERED.
called the Writ of Amparo. The privilege includes availment of the entire procedure
outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo. After examining the
petition and its attached affidavits, the Return and the evidence presented in the
summary hearing, the judgment should detail the required acts from the respondents
that will mitigate, if not totally eradicate, the violation of or the threat to the petitioner's
life, liberty or security.
A judgment which simply grants "the privilege of the writ" cannot be executed. It is
tantamount to a failure of the judge to intervene and grant judicial succor to the
petitioner. Petitions filed to avail of the privilege of the Writ of Amparo arise out of very
real and concrete circumstances. Judicial responses cannot be as tragically symbolic
or ritualistic as "granting the privilege of the Writ of Amparo."
The procedural irregularities in the RTC affected the mode of appeal that
petitioners used in elevating the matter to this Court.
It is the responsibility of counsels for the parties to raise issues using the proper
procedure at the right time. Procedural rules are meant to assist the parties and courts
efficiently deal with the substantive issues pertaining to a case. When it is the judge
himself who disregards the rules of procedure, delay and confusion result.
The Petition for Review is not the proper remedy to assail the interlocutory order
denominated as "Decision" dated 20 March 2012. A Petition for Certiorari, on the other
hand, is prohibited.36 Simply dismissing the present petition, however, will cause
grave injustice to the parties involved. It undermines the salutary purposes for which
the Rule on the Writ of Amparo were promulgated.
In many instances, the Court adopted a policy of liberally construing its rules in
order to promote a just, speedy and inexpensive disposition of every action and
proceeding.37 The rules can be suspended on the following grounds: (1) matters of
life, liberty, honor or property, (2) the existence of special or compelling circumstances,
(3) the merits of the case, (4) a cause not entirely attributable to the fault or negligence
of the party favored by the suspension of the rules, (5) a lack of any showing that the
review sought is merely frivolous and dilatory, and (6) the other party will not be
unjustly prejudiced thereby.38
WHEREFORE, in the interest of justice, as a prophylactic to the irregularities
committed by the trial court judge, and by virtue of its powers under Article VIII, Section
5 (5) of the Constitution, the Court RESOLVES to:library

251